Time is almost up for Proud Boys on trial for seditious conspiracy: Another week gone and another week begins in historic Jan. 6 case

From emptywheel: Thanks to the generosity of emptywheel readers we have funded Brandi’s coverage for the rest of the trial. If you’d like to show your further appreciation for Brandi’s great work, here’s her PayPal tip jar.

The Proud Boys seditious conspiracy trial, after three arduous months, is on the verge of its conclusion. Closing arguments in the historic case unfolding just steps away from the U.S. Capitol could come as early as this week though not before at least one of the defendants may testify. 

On Tuesday, when U.S. District Judge Timothy Kelly takes the bench for the 53rd time in the trial’s proceedings, the final contours of the Proud Boys defense are expected to be outlined and any final attempts by the defendants to undercut what has been a massive presentation of damning evidence by the Justice Department will be made. 

If this trial has been a marathon, this is now the final leg, and as the defendants arrive at the finish line, they only have so much time left support their argument that they were not part of a conspiracy to forcibly stop the transfer of power on Jan. 6, 2021, nor were their efforts aimed at obstructing Congress from certifying the results of the 2020 election. 

Last week, Norm Pattis, a defense attorney for Proud Boy Joseph Biggs, said the former Infowars contributor wouldn’t take the witness stand. To what may end up being his benefit, Biggs has been a largely quiet figure at trial, sitting mostly silently for weeks in a series of gray suits and dark-framed glasses as he occupies a corner of the defense table positioned furthest away from the jury. 

Pattis and his co-counsel Dan Hull have mostly managed to keep Biggs and questions about his specific conduct on Jan. 6, alleged or otherwise, limited. 

When it has come to the cross-examination of government witnesses who suggested Biggs was integral to the breaching of initial barriers on Jan. 6 alongside defendant Ethan Nordean or when it has come to claims that he played a central role in whipping people into a frenzy, Pattis has often worked to refocus the jury’s attention to matters tangentially-related, like philosophical or ideological points around protest, speech or assembly. 

Where that has failed outright or faced disruption through a series of sustained objections from prosecutors, Biggs’ legal team has invoked the suggestion that the violence of Jan. 6 was the byproduct of FBI interference or incitement or just pure herd mentality. 

In court this week, the only evidence Biggs presented was a roughly 90-minute video of a Proud Boys video teleconference meeting held on Dec. 29, 2020. The video, according to the defense, goes toward the claim that Proud Boys had only planned to engage in a peaceful protest and respond to antifa or leftist interlopers accordingly. 

The force of that video’s effect, however, may have been mitigated since Biggs said little in it to start and on top of that, it featured unsavory moments steeped in anti-Semitism and misogyny. 

For example, jurors heard Tarrio and fellow Proud Boys in the meeting laugh as Tarrio discussed wearing a “six-pointed star” on Jan. 6 and making their official colors white and blue, like the Israeli flag. 

As the men laugh in the clip, Tarrio is heard assuring them that Proud Boys would never elect a “small hat” to their elders’ council. A small hat is a presumed reference to a yarmulke. Then, at another unsympathetic moment in the meeting, one Proud Boy is heard recalling how at the Dec. 12 rally in D.C., a woman tried to walk past him in the crowd. 

She told him to “make a hole” so she could squeeze by. In the clip, the Proud Boy recounted what he thought in the moment to Tarrio and crew: “I’m about to make a hole and put you in it you fucking whore,”

The jurors, as such, have mainly been left to acquaint themselves with Biggs through footage of him on Jan. 6 where he is regularly seen exuberantly clutching a bullhorn or shouting angrily about antifa or marching past police barriers with fellow Proud Boys as the melee around them comes to a crashing head. 

The leader of the neofascist network, Henry “Enrique” Tarrio, is very unlikely to testify barring any last-minute changes of heart. Though he was absent from the Capitol on Jan. 6, prosecutors argue the Miami, Florida-based Proud Boy oversaw and coordinated the group’s efforts from afar and had intended to stop the certification for weeks. 

During the trial this February, jurors saw evidence to suggest that Tarrio had by Dec. 30, 2020, possessed and shared a key document entitled “1776 Returns” that contained a detailed proposal to occupy federal buildings in Washington, D.C.

It didn’t mention the U.S. Capitol building specifically and Tarrio has vehemently denied authoring the proposal or knowing the document’s origins. Nonetheless, in text messages shown to jurors last month where “1776 Returns” was discussed, Tarrio is seen vowing that his “every waking moment” consisted of thinking about a “revolution.”

This poked a large hole in the defense’s already-thin theory that Proud Boys only concerned themselves on Jan. 6 with the task of protecting innocent Trump supporters who wanted to rally unmolested by rabid leftists hiding in plain sight.

During trial last week, Tarrio’s attorney Sabino Jauregui entered text messages into the record between the Proud Boys leader and Shane Lamond, a D.C. police lieutenant. The messages, according to Jauregi, support Tarrio’s assertion that he informed police of Proud Boys activities and whereabouts regularly and that he didn’t obscure his intent with officers for Jan. 6. 

Almost all of the texts shown in court last week (there were 46) were from points long before Jan. 6. And while Tarrio has painted the relationship he had with Lamond as one of equal input, some of the texts suggest the relationship may have been lopsided and most of his messages to Lamond were short and sweet. 

Lamond is currently under investigation for his communications with Tarrio. He has not been charged with any crime and he has denied any wrongdoing. Lamond has, however, invoked his Fifth Amendment right against self-incrimination and has opted against testifying at the trial.  

The texts were varied; mostly showing Lamond asking Tarrio where Proud Boys would be during a rally or other high-profile event. The men were friendly, with Lamond calling Tarrio “brother” and Tarrio calling Lamond “bruv.” They discussed getting drinks. He told Tarrio in November 2020 just a few days before the Million MAGA March in Washington, D.C., that he didn’t want the ringleader of the extremist group to think cops were keeping “tabs” on him or the Proud Boys when they were in town. 

But, Lamond told him,  knowing their movements could help police keep counterprotesters away from them. 

Jurors also saw texts where Lamond warned Tarrio in the days before the Capitol assault, that alerts were going out to police that Proud Boys were on Parler talking about “mobilizing and ‘taking back the country.’” 

And in at least one eyebrow-raising message displayed in court last week, Lamond told Tarrio to text him on an encrypted channel. 

By the time Dec. 19 rolled around, Tarrio told Lamond if Proud Boys came to D.C. at all, it would be in “extremely small” numbers and without their traditional black and yellow colors. 

Ultimately, prosecutors say Tarrio instructed members to hide or delete communications about Jan. 6, and by assuming the role of the group’s “marketing” leader, Tarrio developed a means to control the flow of information about the alleged conspiracy internally and externally. 

Though prosecutors have seemed to concede that Proud Boys were, at least for a time, focused on groups like “antifa” when they prepared for political rallies, they argue that purpose shifted dramatically once Proud Boy Jeremy Bertino was stabbed following the Dec. 12, 2020 “Stop the Steal’ rally. Text messages and witness testimony offered in court have shown Proud Boys airing frustrations about police routinely after that episode. 

Once Tarrio was arrested on Jan. 4, 2021, for burning a Black Lives Matter banner in Washington, D.C. a few weeks prior, the animosity had ratcheted up. In video footage from Jan. 5 and Jan. 6, Tarrio’s familiar and a fellow member of the group’s so-called “Ministry of Self Defense,” Florida Proud Boy Gilbert Fonticoba, is seen wearing a shirt proclaiming Tarrio’s innocence in the face of his arrest. 

His shirt read: “Enrique Tarrio Did Nothing Wrong.” 

Meanwhile, in court on March 30, while appearing as a witness for defendant Zachary Rehl, former West Virginia Proud Boys chapter president Jeff Finley flatly denied that the organization held animosity toward the police. His testimony lost some credibility though once prosecutors presented him with a text he sent to the Proud Boys “Boots on the Ground” channel on the morning of Jan. 6. In the message, Finley urged: “fuck the blue.”

He told the jury with little remorse if that’s what the record showed, that’s what it showed. Finley struck a plea agreement with the Justice Department and is in the process of serving out a 75-day prison sentence now. 

As for Fonticoba, he is one of several Proud Boys who falls under the prosecution’s “tools” theory. That theory suggests the defendants relied on each other as well as other members of the network to be their foot soldiers on Jan. 6 so they could forcibly stop the certification. Among the “tools” of the conspiracy activated by the defendants, according to the Justice Department, are Proud Boys like Paul Rae, John Stewart, Gabriel Garcia, AJ Fisher, Nicholas Ochs, Arthur Jackman, James Haffner, Ronald Loehrke, Nate and Kevin Tuck, Eddie Geroge, Dion Rajewski, Briele Boele, James Brett, Zach Johnson, and others. 

Proud Boy leader Ethan Nordean of Washington State isn’t expected to testify before all is said and done. Nordean has had far greater exposure to jurors over the course of the trial in comparison to Biggs and this despite the fact that both of the men are alleged to have led dozens of Proud Boys and other people past police barricades in equal measure. 

Footage of a hard-drinking Nordean has been depicted in court alongside other evidence, including communications where the Proud Boy expresses an intense and unwavering outrage at a “stolen” election. Testifying for Nordean would be particularly risky given his proximity to several “tools” in the conspiracy, like Ronald Loehrke, who prosecutors say he recruited to be on the front lines of the breach. If Nordean were to come under cross, it likely wouldn’t take prosecutors long before they would open a door to questions about his efforts recruiting fellow Proud Boys to the alleged cause. 

Only defendants Dominic Pezzola and Zachary Rehl have indicated they would testify but it is less clear if Rehl will take the risk. 

On top of seditious conspiracy and other charges, Pezzola is alleged to have stolen a police riot shield on Jan. 6 as well. Video footage, prosecutors contend, plainly shows Pezzola using that shield to smash apart a window at the Capitol that would allow rioters to stream rapidly inside. Pezzola’s attorney Steven Metcalf last week said he was confident the Rochester, New York Proud Boy would testify on his own behalf. 

Pezzola’s wife, Lisa Magee, testified on his behalf last week. She was often a sympathetic figure. Pezzola may not have gone to D.C. at all, she recalled, if he had listened to sage advice from her father. 

She told jurors how her father had warned her husband on Jan. 5 to stay home and not go to D.C. And at the time, she recalled as she sighed in court last week, Pezzola agreed to stay home and out of trouble. Less than a month before, she testified, she called her reaction to seeing Pezzola’s face after it was splashed across the Washington Post following the Stop the Steal rally in December. 

She told jurors she recalled telling her husband plainly that he was “a fucking idiot.” 

But on the eve of the insurrection, she went out for a girls-night and Pezzola left for D.C. When she testified, she was convincing when she suggested that Pezzola’s activities with the Proud Boys were mostly kept away from her view. She expressed frustration with her husband. He had changed, she said, after inundating himself with politics and Fox News. He started drinking heavily. The Covid-19 pandemic hit his business hard. He was angered, she said, when protests sparked by the police killing of George Floyd bubbled over and turned violent. She told the jury she didn’t know that her husband believed a civil war was imminent or if he was in the throes of a battle against good vs. evil, capitalism vs. communism, or freedom vs. tyranny. 

As a former U.S. Marine, her husband was a man who once devoted to a principle, would go to great lengths to uphold it, she said. 

But this quality can cut both ways. 

For the defense, Pezzola’s purported moral fortitude and ritualistic devotion to American ideals meant he would never dream of conspiring against the United States. For prosecutors, the trait meant Pezzola would act unflinchingly if he felt his version of America was under attack. 

And, prosecutors elicited, once Pezzola returned home from Washington, he got rid of his cell phone and was unable to be reached by his wife until Jan. 9. 

At trial last week, a witness for Pezzola, Steven Kay Hill, tried to give the Rochester Proud Boy and former Marine cover with his testimony. In short, Hill was set to argue that Pezzola did not steal the riot shield by the looks of it, but rather, that he was reacting to an overzealous police force that deviated from a policy that would have kept the mob calm on Jan. 6. It was essentially police who were to blame for the use of chemical irritants and less than lethal munitions, Metcalf argued. 

Metcalf walked Hill, a former police officer and law enforcement training instructor from New Mexico, through a series of video clips from the moments before and after Pezzola got ahold of the riot shield. On direct, Hill testified that the mob became incensed only after police fired a less-than-lethal munition into the crowd and hit a rioter, Joshua Black, in his cheek. 

Jurors saw a gruesome photo of Black moments after he was struck, a hole bored into the side of his face and blood at his feet. 

“They were angry. They were upset. They were pissed because one of their own has just been shot in the face,” Hill testified on April 6. 

Jurors saw footage of Black being approached by a police officer in riot gear after he is hit in the cheek. The officer appears to rest his hand on Black’s shoulder as both of the men are crouched down looking at each other. Hill conceded that while he couldn’t tell what was being said, it did appear the officer was extending aid. 

In video footage, the officer is nodding briefly while speaking to Black and they are flanked on either side by protesters and police. Prosecutors say it was at this moment that the officer was offering to help Black before attempting to take him behind police lines to treat his injuries. 

Hill told jurors this was “a mistake.” 

When the crowd saw the officer try to take Black, they only thought: ‘You’re not taking him. He’s one of ours,” Hill said. 

Black, injury be damned, would fall back in with the crowd and eventually make it all the way to the floor of the Senate. 

This moment played out almost simultaneously to the moment Pezzola “fell” to the ground, Metcalf argued, and incidentally grabbed a riot shield in the fracas. Metcalf stopped short of calling Pezzola’s possession of the shield self-defense but his client’s actions, he argued, could be chalked up to panic, not an intent to steal. 

On cross-examination however, prosecutor Conor Mulroe elicited that long before Black was hit in the face with a munition, the crowd was already at a fever pitch and clashing with police. 

Long before Pezzola got the shield, Hill testified, there was a lot of fighting and yelling directed at officers. For every 50 to 60 police officers on duty, Hill estimated, there were at least 500 to 600 protesters. 

Where the defense said Pezzola acted reflexively, prosecutors say Pezzola was opportunistic. 

Hill also testified that police didn’t fire indiscriminately into the crowd, as Metcalf had insinuated and he agreed that footage from Jan. 6 appeared to show police only targeting those rioters in the crowd who had visibly attacked officers. 

To support this, jurors heard police radio transmissions where officers are heard describing active police assaults in progress as they identify specific assailants in a hectic scene.

In court last Thursday, Hill said he couldn’t tell if Pezzola was being shoved from behind or not as he finally entered the fray. 

As for Rehl, should he testify, he runs the risk of unwinding whatever good favor his attorney Carmen Hernandez may have raised for him over the course of the trial. Hernandez, at the risk of being repetitive, takes every chance she can to remind jurors that Rehl had no weapons on him when he entered the Capitol. Rehl was a servicemember, a graduate, a husband, and a father, Hernandez has said. 

Rehl didn’t celebrate violence, Hernandez insists and he didn’t give anyone any orders on Jan. 6. But prosecutors have showed the jury a less favorable view of Rehl. They have shown the jury a Rehl who deeply lamented Trump’s election loss and worked hard at recruitment efforts. They have shown the jury a Rehl who, instead of retreating as officers were clearly overrun on the 6th, sent updates to Proud Boys in group chats. 

To that end, as a horde of rioters breached the building that afternoon, Rehl wrote, “Civil war started.” 

He pushed past barricades and broke into Senator Jeff Merkley’s office with other rioters and Proud Boys, including some members who prosecutors have said are “tools” of the conspiracy. 

Not one week in the Proud Boys seditious conspiracy trial has passed by smoothly and last week was no different. Apart from routine objections launched by the defense to even the most mundane of issues and separate from the unending series of motions for mistrial, last week featured a new and unwelcome variable: the sealed hearing. 

A sealed hearing, or a hearing closed to the public and press, is typically held when sensitive or classified matters are being discussed by the parties. Trial days were stopped and started three times last week for sealed hearings that stretched for more than an hour. A press coalition moved to unseal proceedings on at least one of those days but was promptly denied by Judge Kelly for reasons he failed to describe on the record. 

Though the exact reason was not disclosed by the court (nor would one expect it to be at this point), CNN reported that multiple sources said the sealed hearing was prompted after a juror raised concerns that she was being followed. Another juror has said they were “accosted” but no further details were available.

117 replies
  1. BobBobCon says:

    I can only hope the jurors get some credit in the press for simply sitting through this and doing their jobs.

    Maybe they do the right thing, maybe some of them mess up. But the press tends to jump right over what they’ve endured, and fails to convey the job they have to do. The large majority treat this seriously, but so much of reporting just treats them as quaint artifacts of an antiquated system.

    • Ian says:

      I served on a jury for a week and it seemed longer. Also mine was pretty funny and very open and shut, this has to be really stressful in many ways without added threats!

      • bmaz says:

        But you seem positive about your experience, right? Most people seem to think that in retrospect it turns out. As I have said often here, I would love to sit on a jury. Any jury. Never going to happen, but I’d love to. It may seem going in like onerous duty, but appears very rewarding duty.

        • wasD4v1d says:

          My two times on a jury were positive experiences, in no small part because the jury in both cases was serious about its task, focused on the legal issues at hand, and able to strip out both the opening/closing theatrics and personal biases. Just the facts.

        • RonDiPronio says:

          i served on a capital murder jury several years ago and it was very interesting; nothing like on TV. the accused spent time staring at each of the jurors and glowering at them, including me. it was disconcerting!

      • Greg Hunter says:

        Serving was very eye opening as the future of the person involved was at stake in some way. The only regret I have was not pushing jury foreman to ask whether the jury could have reduced the dollar amount of the crime below the felony level. The accused was on trial for not completing a house painting contract which I thought was too low of a bid in the first place. I was the youngest person in the jury pool and my request for clarification did not hold sway.

        I remember the piece of paper indicating what we were convicting for and the dollar amount.

        I was actually shocked I got to stay on the jury as one of the of the prosecution witnesses was a high school classmate. The judge asked if I could be impartial and I said yes.

      • retired railroad switchperson says:

        My one recent jury experience was a misdemeanor battery case involving 2 young women in a conflict that was essentially set up by the man who had fathered children by both of them. After the trial was over we learned that both the prosecuting & defense attorneys were working their first ever real-life cases.

  2. AllTheGoodIDsWereTaken says:

    Thanks for another detailed write-up. I hesitate to jump in as a first-timer (and NAL), but have to challenge this:

    “… as the defendants arrive at the finish line, they only have so much time left to convince jurors beyond a reasonable doubt that they were not part of a conspiracy … ”

    Surely this is not the bar that the defense must reach – don’t they only have to convince jurors that there is at least some reasonable doubt as to whether they were …

  3. David F. Snyder says:

    The “little hats” remark feeds is evidence of the tools theory of the prosecution. I hope this has been or will be pointed out to the jury.

  4. harpie says:

    Here’s the beginning of Brandi’s thread for today:

    5:57 AM · Apr 11, 2023

    Hello and welcome to Day 53 of the Proud Boys seditious conspiracy trial. Judge Kelly hits the bench at 9 am ET. I will have live coverage of proceedings for @emptywheel. We are getting into the final leg of this trial! Catch up with my report embedded below: [link][photo][THREAD]

    If the plans from last week for today hold, Kelly and the attorneys will be in at 9 am to resolve some lingering motions and other housekeeping issues but the jury is due in at 11am ET. […]

    • harpie says:

      9:08 AM https://twitter.com/Brandi_Buchman/status/1645775812971438081 []

      Prosecutors filed their response to a Roger Roots (Pezzola) motion demanding govt disclose the names, IDs & reports of all of its confidential human sources operating at the Capitol on 1/6 under the “Homeland Security Unit.”

      To start, govt says that “unit” is wildly generic…

      The 5-pg response from the govt is short but rich: the “Homeland Security Unit” cited by Roots — that’s not a thing. Unless he can really specify which of the 18,000 various federal, state, or local law enforcement agencies he’s referring to. [LINK]

      And while Mr. Roots may be acting brand new, as the kids say, govt says, it shouldn’t be remotely surprising that law enforcement would monitor the Proud Boys. To that end: [screenshot]:

      […] The Proud Boys have been associated with violence since their inception. […]

      Kelly begins discussing this at 9:19 AM below.

  5. harpie says:

    9:19 AM · Apr 11, 2023

    Defense attorneys are filing into the courtroom now – the jury isn’t in until later this morning (around 11 am)…once we get rolling, I’ll start live-tweeting for @emptywheel.

    [fly on the wall] Prosecutors also arrived a few minutes ago and I note, AUSA Erik Kenerson appears to have had a haircut over the long weekend.
    We’ve been here a long time, folks.
    I determine this in part by the number of new haircuts I’ve seen since January! [LOL!]

    9:37 AM And away we go.

    Juror who has work related reasons for not being able to be there Thursday and Friday will not be excused…Kelly says they have other things they can do with that time without jury.

    Kelly now addressing motions to dismiss obstruction charge and CHS info,

    • harpie says:

      9:46 AM

      Roots: The govt has responded to us after our questions with an almost a brush-off saying the Brady obligations don’t require them to reveal CHS or any agency other than the FBI…

      (that’s not what they said…not exactly…) […]

      Roots: We have reason to believe state depart, national park police had undercover and we know they did more than monitor… if they monitor these Proud Boys and defendants up to and leading up to Jan, 6, even merely monitoring is exculpatory…

      Roots claims he has evidence from Metro PD electronic surveillance squad suggesting they were confronted by police on 1/6 and told police they were armed and police let them go….these informants incited the crowd…

      Roots: “This trial, this case, is fundamentally tarnsihed and poisoned by the lack of this information. We would have used this information in cross-examining govt witnesses weeks ago and would have used it to present our cases-in-chief right now…

      Roots says this requires a mistrial.

      Kelly: I’m surprised to hear you say, Mr. Roots, that just chanting something is incitement…

      • harpie says:

        9:58 AM

        AUSA Ballantine: I’m troubled to hear Mr. Roots refer to govt as intellectually insulting in light of the characterizations that he, as an officer of the court, presents to the court in re: to information he learns of… [LOL!]

        Bal: We’ve been scrupulously accurate re: case law that governs Brady ; govt must disclose info that is exculpatory to defense. In Jan 2022, govt disclosed 65 videos from MPD officers that were acting as roving cams on the grounds of the capitol…

        Bal: He’s been in possession for a year and 3 months and his allegation that it somehow comes too little too late, candidly, may simply be a reflection of the fact that Roots had joined this trial team after trial commenced & clearly has not had enough time to review materials…Ballantine: That is not the case with his very capable counsel Mr. [Steven] Metcalf…


      • harpie says:

        9:59 AM

        Kelly appears to be in agreement with Ballantine —
        Kelly: I don’t see anything in the motion that is specific about what the defendant thinks exists, why he thinks it exists and why he thinks he’s entitled to it, and certainly why he thinks it would be exculpatory

        Judge Kelly denies orally the motion to compel from Roots.

        10:01 AM

        To preserve time, Kelly addresses the motion for mistrial filed by Zachary Rehl over the weekend: Kelly wants to table that discussion until Thursday when we don’t have the jury’s time to worry about…

        (He signals he isn’t inclined to grant it given dec. with motion to compel)

    • harpie says:

      10:04 AM

      AUSA McCullough says the only other witness would be the window expert requested by Pezzola…

      But we still have the 3 MPD officers potentially for defense..

      Norm Pattis for Joe Biggs says they’ve interviewed the MPD officers: “We’ve been given opportunity to interview all of the witnesses, we’ve discussed what to do with them, Biggs has no intent to offer any as witnesses, I can’t speak for other defendants..”

      • harpie says:

        Roots: I’ll just say, from the 3 MPD officers we’ve interviewed, there’s enough information, there is material information, but frankly it comes so late, we’re at a point where it’s very difficult to process this. This trial would have been fundamentally different if we had this before us weeks ago, so we’re probably not going to call any of the 3 MPD officers…

        Kelly confirms he’s not calling them and asks if any other defendant wants to call them…

        Carmen Hernandez for Zachary Rehl says she won’t call on the MPD officers but she joins Roots in his commentary about not receiving enough information in a timely manner and says its prejudiced their case.

        [BRANDI]: I would give anything to see the notes Judge Kelly takes for himself during this trial. [Yes!]

        Ethan Nordean and Henry Tarrio join the statements by Roots and Hernandez this a.m.

        10:07 AM

        Ballantine: So Mr. Roots’ representation that the govt has limited their access to these witnesses or directed their access to these witnesses is not correct.

        Kelly: So, in summary, we are in agreement that the only witness, putting aside expert for the moment… The only outstanding witness is the investigator and then we’ll decide whether a witness will testify?

        Norm Pattis asks for a sidebar.
        Husher on.

    • harpie says:

      10:20 AM

      Kelly: I’m not going to rule on it or discuss it but let me lay down a few thoughts so we can be more productive on Thurs…

      I’m not convinced that a concurrence binds me (Judge Walker’s concurrence)…if it were applied to circuit or even operate here in way ppl think it might. I’m not convinced of that, Kelly repeats.

      I’m not convinced but more open to contrary view… that we should pivot and redefine corruptly either. I’ll hear you on that. I don’t want to close the door, but I’m saying my inclination is not to pivot wholly to that other instruction

      Kelly: I would ask both sides to think about what they think about adding something that defines corruptly, put a pin in what typical instruction has been….

      Kelly says the language around corruptly could be something like, it procures a benefit for the defendant or someone else….

      This is all food for thought, Kelly says.
      Again, this will be a piece we will resolve later this week (Thursday).
      He won’t decide on it today or hear from parties, but wants them to think about.

      10:21 AM

      Smith wants to make one part clear…

      Smith: Judge Walker’s concurrence is binding, even if its not binding, its well reasoned and persuasive and we think Judge Waker is saying unlawful benefit element is a required element of the crime ….
      (Kelly just said he wouldn’t hear parties on this)

      10:25 AM [Smith continues]
      Smith: And on binding point, two judges in court of appeals said standard now in jury instructions —

      Kelly: Mr. Smith, I’m sorry to cut you off, but I literally just said I wouldn’t hear argument on it now.

    • harpie says:

      10:30 AM · Apr 11, 2023

      Kelly: …they can’t hold that against them if they decided not to testify.
      Hern: Again, my client is leaning towards testifying but I agree with…

      Kelly cuts her off: I’m not going to do this now… it makes sense to get it on books for 3 who are not and after we’re sure all of the evidence is in, we’ll make sure to turn back to that.

      And now, we’re on a 10-minute recess

      10:47 AM

      And we’re back.

      Judge Kelly says he will grant the govt’s motion to deny the window expert for Pezzola (Roots).

      He’ll explain more later, he adds.

      The investigator witness for Rehl will come in.

      Kelly now moves to asking defendants who will testify. He turns to Ethan Nordean first. […]

      NORDEAN, BIGGS, TARRIO all decline to testify.

      10:54 AM

      A husher is now on as the court figures out what it will do in the short window before jurors return.

      I note as the husher is on and parties are on the phones in court: Hernandez for Rehl appeared to be doing a lot of the talking, Pattis for Biggs was listening intently. Biggs, Pezzola, Nordean, Tarrio all on phones, (I can’t see whether Rehl is….)

      Biggs appeared to be speaking into the phone at one point.
      Husher off.
      Kelly starts:: On the pt you have raised, they’ve told me, they sort of need to be adjacent to him when he testifies… given the layout of this courtroom…

      • harpie says:

        I think they’re talking about whether REHL will have a Marshall behind him when he testifies.

        11:06 AM

        Hernandez: If court doesnt grant it, I object to procedure.
        Kelly: Ive heard what they’ve told me about their standard operating procedure and looked at area in light of all that, I’m not going to countermand procedures that are used in every single case in the US.

        Kelly: It would be more dramatic if your witness rose from his seat and had marshall follow him all the way to witness stand. My thought to minimize it is to have him prepositioned, marshall can be somewhere nearby, have jury come in, sit and have marshall simply take a seat. Many of the jurors it wont be in their line of sight. But you’re right. It is what it is, all i can do is work around their procedures to minimize the impact….

        Hernandez disagrees.

        Brandi: It seems not one part of this case can go smoothly, not even deciding how a witness can physically take the witness stand.

        • Ginevra diBenci says:

          harpie? Brandi? I’m trying to discern Rehl’s wishes with this. Does he want the Marshall drama or would he, like the Court, rather minimize it?

  6. harpie says:

    11:13 AM · Apr 11, 2023

    Jury will come in now and the investigator for Zachary Rehl will take the witness stand to testify. This is expected to be Rehl’s last witness.

    To be clear, Rehl is poised to testify on his own behalf once this last witness of his is done and other matters are tidied up. […]

    Brandi: It feels surreal to hear the parties talk about the end of this trial.
    harpie: I agree.

    • harpie says:

      11:21 AM

      Now Rehl’s witness takes the stand and Hernandez takes the podium.
      David Jones, a licensed private investigator in DC. He is a white male, middle-aged, larger in build, dark suit, light shirt and glasses. No facial hair.
      He’s been a PI since 1997. Before then, US Navy, UMD grad

      What was your position in the Navy?
      Object to relevance. Overruled
      Jones: Intelligence collecting and cryptography
      Hernandez: Have something to do w/your current work?
      Jones: I don’t think so

      It sounds like he’s testifying that the voice that says
      “fvck it! storm the Capitol” is NOT REHL’s voice.

      • harpie says:

        11:42 AM

        Another bit of footage plays only for the witness. It runs for nearly a minute and AUSA Jason McCullough asks for a sidebar. Husher now on.

        Husher off. The video continues to run for the witness only. In the media room, all I can hear is chanting, cursing “fuck you, can’t stop em” — Hernandez apologies and says she’s looking for something (prob a specific timestamp)…

        11:46 AM The jury still cannot see the video, but it continues to run for Jones. And all they can hear is the sounds of the mob.

        Hernandez says she wont move any other video into evidence and moves onto a different topic.

      • harpie says:

        11:49 AM

        Hernandez is going through paperwork at podium, it’s very quiet for a moment.
        Then she introduces a picture just for the witness and asks Jones if he knows what govt exhibit it is from his notes.
        “From my notes? Yeah I could look,”
        Would that refresh your recollection?

        Hernandez says govt previously introduced this exhibit (401G);

        McCullough says they move for Jencks production, this should have been previously disclosed…

      • harpie says:

        11:56 AM

        Sidebar over. Husher is off.
        Hernandez brings up the exhibit she referenced a moment ago for the jury. It’s a picture from 1/6, angled up toward the scaffolding. Matt Greene is visible, appears to be holding something to his ear.

        Hernandez circles a man at the bottom right corner. Can Jones ID him?
        Jones says the man appears to be Pezzola.
        Timestamp on phone for picture is 1:13:07, Hernandez elicits from Jones.

        It appears the person taking the picture is —
        Objection, foundation.

        H: Mr. Jones, you’ve been working as an investigator how many years? // J: 25-26. // H: You take photographs in course of work? // J: All the time // H: How many? // J: Since digital cameras, 1000s, sure // What is the purpose of taking photographs? // To memorialize what a scene may look like from a particular time of day or angle // H: Sometimes take pics at request of atty? // J: Yes // H: And sometimes on your own? // J: Usually on my own, yes // Hernandez: What is the person trying to take a picture of here?
        Objection, foundation. Sustained.

      • harpie says:

        11:57 AM

        Now Hernandez pulls up a photo with metadata that Jones testifies is four seconds after the photo featuring scaffolding in background, Matt Greene and rioters in foreground.

        Pezzola is not in this photo four seconds later. Hernandez asks Jones based on his expertise, what is the focus of the photograph?
        Objection overruled. Kelly says witness can say what he thinks it is, based on his observation

        The pic shows mob ascending scaffolding at Capitol. Crowd thick, prominent
        Jones: From a local resident POV, I see the Washington Monument in distance
        H: Does the focus appear to be the crowd?
        J: All I can say is the Washington Monument is in the very center of the photograph

        RELATED: [LINK]

        After a sidebar that lasted a couple mins, now, Hernandez (for Rehl) plays more footage for jury. It features the man Jones has identified as Paul Russell Johnson, shouting into a megaphone. As camera pans around, Biggs and Nordean visible. Nordean drinks beer, Biggs pumps fist

        Hernandez IDs the timestamp in the govt video and ends her questions for Jones.

        Links to:
        10:01 AM · Apr 11, 2023

        .@SaraphinD walks through the DC Circuit’s ruling on a key statute in the Jan 6 prosecutions, and why it may spell trouble for DOJ @lawfareblog [link]

        One of the Stiffest Charges Against Jan. 6 Insurrectionists Hangs on by a Thread in the D.C. Circuit https://www.lawfareblog.com/one-stiffest-charges-against-jan-6-insurrectionists-hangs-thread-dc-circuit
        Saraphin Dhanani; April 11, 2023

      • harpie says:

        12:07 PM

        Now, AUSA Jason McCullough will conduct cross-examination.

        12:14 PM
        McC: Quickly, you were shown a video of Paul Johnson
        J: Correct
        M: One of this videos is of him near the Peace Monument?
        J: Correct
        M: And it showed him pushing down a fence?
        J: Pushing a fence
        M: And that fence wasn’t bolted to ground?
        J: Didnt appear to be

        And he pushed that fence down to advance on Capitol?
        And that’s a violent action?
        Objection from Pattis. “Characterizing action everyone can see themselves.” Sustained.
        McC: He’s taking an action so he can proceed fwd?
        Jones: That’s what it looks like

        McCullough: Harder to push down fence bolted to ground or not?
        Objection 403. Sustained.

        McC then affirms again that Jones saw videos of Johnson at Peace Monument and at next location before proceeding to next question.

        • harpie says:

          12:14 PM

          M: Johnson was at Peace Monument with a megaphone?
          J: Right
          M: Biggs, Rehl, Nordean also at Peace Monument?
          Jones: In that area
          McCullough: And they also had a megaphone, yes?
          Jones: One did

          Paul Johnson wasnt with Rehl, Biggs, Nordean at other pts in mall earlier that day?
          Not that I saw, Jones says.
          Did Jones see Johnson [inaudible] —

          As McCullough pulls up video from Wash Monument at 10:43 a.m. on 1/6, Hernandez objects to relevance. Sidebar. Husher on.

          12:17 PM Husher comes off and video plays. Nordean addressing PBs. He’s saying “we got some guys last time…”
          McC: It was Nordean addressing a group of PBs on the mall?
          Jones: Correct
          Hernandez objects. Relevance.
          Kelly: I’ve already ruled
          Hernandez: And scope.
          Video plays.

          Jones and Biggs then address the PBs here?
          Jones: Right here yes
          Biggs is seen addressing crowd. McCullough fwds clip to 11:33, and Nordean is again addressing the group
          McC asks Jones if it was Biggs or Nordean leading the group
          Jones, voice quiet: Cant say he’s leading

        • harpie says:

          12:17 PM

          McCullough asks about the food trucks and elicits this is where Jones started reviewing the footage.
          You didn’t actually review the defendants other actions that day?
          Jones affirms.
          McC: Its Nordean who tells group to go to Peace Monument
          Objection, foundation, sustained.

          Kelly says witness hasn’t reviewed this video and McCullough fights it, saying the witness was testyfing to this video.
          Norm Pattis asks for a sidebar and Kelly grants it. Husher on. […]

          12:20 PM

          Husher is off.
          Now McCullough pulls up side by side video from 12:48 p.m. on 1/6. It shows a group of PBs being led by Nordean, Biggs and Rehl.
          Jones recognizes it.
          Hernandez objects, scope. Overruled.
          The videos play (showing same scene from diff angles)

          In video, chants go up “whose streets our streets” and “fuck antifa” as PBs march.

          McCullough: Did you seee Johnson in any of those images?
          Jones: No

        • harpie says:

          12:22 PM

          Now its 12:52-12:53 p.m. clip from 1/6 and Biggs is seen clutching a megaphone. McCullough plays the video.
          “Whose capitol, our capitol?” is being chanted, Jones affirms, right in front of the Capitol.

          McC: That’s Biggs leading that chant? Not Johnson?
          Jones: It appears to be. Johnson is using his megaphone but you can’t hear what he’s saying…

          12:28 PM

          McCullough has another video to show the jury and Jones. It’s video shot by Zachary Rehl.
          McC: The person holding the camera is going towards the breach?
          J: To some degree, yes
          M: And they continue moving twd the fence, correct?
          J: Right

          McC: And right here is right up on the fence?
          J: A couple bodies back
          M: And Johnson comes into frame?
          J: Yes
          M: And person taking video IS Right behind them?
          J: Behind to the left
          M: Person taking this video rushes the barrier?
          J: He crosses the barrier, yes

          McCullough: One of the first people to cross the barrier?
          Jones: A couple dozen, yeah

          • harpie says:

            Video plays. McCullough recreates gutteral sound in court after it plays, showing breach. He asks Jones if the grunting sound is Rehl.
            J: I’ve taken into consideration that the grunting sound is close to the camera filming this?
            M: That grunt is Mr. Rehl?
            J: Sounds like it yes

        • harpie says:

          12:28 PM

          McC: How about the voice saying ‘fuck them storm the capitol’?
          J: I can’t say who that is
          McC: you are that voice is closer to the camera?
          Objection sustained.
          McC: That’s a voice you don’t recognize as Mr. Rehls?
          J: I do not, no

          McCullough plays another clip. First without video. Just audio. Asks Jones if he can ID Rehl. Then he plays it with video and audio. He asks Jones if the voice saying “too late for that, fuck it” as the Capitol is being stormed is Mr. Rehl
          Seems like it, yes, Jones testifies

          McCullough ends his cross of Jones. And now it will be up to Hernandez to conduct redirect.

      • harpie says:

        12:32 PM

        After a brief sidebar, she [Hernandez] begins and says, prosecutors showed him video of PBs marching thru Cap?
        He says not thru Cap but on Mall.
        Did he see Johnson in any of those videos?
        Jones: No

        H: See him following PBs or being led by PBs?
        J: Correct
        H: And in videos you did see of him, breaking down and pushing fence, did he appear to you to be doing that on his own?
        Jones: He did

        Hernandez elicits that Jones is a licensed private investigator in DC with experience since 1997 and he doesn’t just work for Hernandez, but for a variety of lawyers and attorneys in DC.
        That ends her redirect.

        Jury excused for lunch.

        [Kelly] tells parties they will return at 1:45 pm and tells Hernandez she can talk with marshalls about how they need to position themselves if/when Rehl takes the witness stand later today.

    • harpie says:

      2:22 PM

      Judge Kelly has returned to the bench. And he begins by asking Carmen Hernandez if she still thinks Rehl wants to testify.

      H: He has to waive his 5A right and has to consider advice of counsel and I would adopt Mr. Smith’s argument that we should know what the terms of two of the three major charges are in this case – the conspiracy and conspiracy to obstruct charges. I believe that the govt’s failure to produce their cross-ex materials until after Rehl testifies burdens his ability to make a knowing and voluntary waiver of 5A..

      I don’t think there’s any authority for any of that as a proposition of law, Kelly says.

      Kelly now addresses Rehl: Your atty has said she intends to rest your casE and you do have a right to testify on your own behalf here. Whether or not you do so, you should discuss with your lawyers, but the decision is ultimately yours and yours alone. If you do testify, I’ll tell jury they should not consider a decision not to testify, to be held against you.

      Rehl addresses Kelly, says he understands and affirms:
      I still seek to testify.

    • harpie says:

      2:24 PM

      Now Hernandez continues earlier objection to a marshall sitting behind Rehl when he testifies.

      Kelly says, there’s a space next to court reporter, in front of witness but lower — have marshalls looked to see if they could put a chair there and comply with procedures or not…

      Kelly: In some ways its less visible….

      The marshall, Kelly realizes, as he turns to look at the witness box, wouldn’t block the juror door, he’s barely visible as is and is behind witness. Hernandez thinks its better but emphasizes, she doesn’t think its nec. at all…

      Pattis joins, saying: He’s presumed innocent and to the degree that there’s any suggestion a man presumed innocent is a flight risk… then it has a tendency to implicate the co-defendants so we want to register strong dissent. […]

      2:28 PM As far as him moving from here to there, the marshalls would have to walk with Rehl to the witness stand, Kelly says.
      Kelly: We’ve had many witnesses in chair when jury comes in, so that alone is not anything unusual. So that’s how we will proceed…Jury is still waiting, by the way.

      • David F. Snyder says:

        Hats off to Judge Kelly. He’s being very tolerant of this clown car of defenders, a good thing but what a circus!

    • harpie says:

      2:36 PM

      NOW: Proud Boy Zachary Rehl is on the witness stand and he is about to testify to the jury.

      Hernandez tells Rehl before the jury enters to take a deep breath. He smiles broadly and easily, moves his water glass to a corner. As the jury comes in, he is turned to face them briefly, smiles and then rotates his chair a bit back and forth. […]

      Rehl’s hair is neatly cut and combed; he’s slender build, wearing a dark suit, light-ish shirt and dark tie. As jury sits, Tarrio and Nordean and their attorneys stand. Pezzola and Biggs stay seated until Hull (Biggs atty) starts talking to him. Pezzola then stands too.

      It took us 53 days, but we are finally about to hear from one of the defendants in this case.

    • harpie says:

      REHL’s father was Philly police officer who died [not in the line of duty] when REHL was 12. He worked to help support the family, graduated from HS and was selling cars in 2008, when no one could get money. So he went into the Marines, duty station in Yuma, Arizona. Supply officer; did not see combat; left service 6 months early because of a shoulder injury. honorable, medical discharge

    • harpie says:

      More biographical information; met his future wife and went to college; first in his family to graduate, in 2016. Grandfather was also a Philly cop.

    • harpie says:

      [Lost my connection…]

      More biographical information in interim.

      3:07 PM

      (I missed the question that prompted this but:)

      Rehl: If you support something people think is the wrong thing, or you come out as Trump supporter or a Proud Boy, you can lose your job, your everything. And people go to great lengths to protect themselves out in public….

      Rehl says his mother has been doxxed because of this trial.
      ‘She received threats from unknown people, including text messages, he testifies […]
      R: One of the things I ended up losing when I left Marine Corps was the brotherhood with other Marines. I had to keep in contact with people and I still did… but, one of the really great problems was the [lack of] brotherhood… […]

      Rehl uses this opportunity to discuss the difference between party boys/rally boys – his answer is a bit all over the place…
      “I like meeting new people, i found a new opportunity to go do that – there’s nothing better than the after-party protest …”

    • harpie says:

      3:16 PM

      The way he phrased the front of this sentence was a bit odd to my ear, but he testifies: “Doxxing aside, one of the things we like to do with Proud Boys is make better men… “

      Rehl talks about the time he met Demetrious Robbins in July 2020.
      Were you present when he and his family were being harassed by counterdemonstrators?
      I was not, but I was told about it after the fact, Rehl says
      Where did they meet?
      Near Wash Monument at some pt

      Rehl said someone introduced him to Robbins and they ended up at Harringtn Hotel and Harry’s bar. (Known PB hangout) And this is when, Rehl testifies, he paid for Robbins hotel room “out of pocket.”

    • harpie says:

      3:27 PM

      I was very vocal about how these radios saved one of my guy’s life…. an idea you came up with helped save that life, so i told a lot of other chapters, use these radios, they might save your life. there’s nothing nefarious about it. […]

      Basically guys who was in charge of movements for the march.
      One of the problems we have in marches is the accordion problem, he testifies
      We had guys in back radioign guys in front, telling them to slow down.
      That’s why guys would say “hold,” Rehl says, lifting fist in air

      All of the chapters were on their own, Rehl adds.

      H: You helped coordinate for Dec 12? Did that include coordination of rowdy altercations you saw Bertino engage in?
      Rehl: No…[trails off inaudible]

      H: Is steroid use a problem at evening rallies for Proud Boys?
      Rehl: I don’t understand what you’re asking me
      Hernandez begins again: Are one of the problems —
      Rehl: I said I don’t understand what you’re asking me

      ^^^ This seems strange.
      Continuing directly:

      After some brief back and forth as Hernandez tries to get to the question she wants to ask, she stops and restarts the framing.
      H: The evening events – the violence that night in December, we saw Bertino loud, with his Mad Max thing on….

      Kelly stops her and says we reached a good breaking pt for the afternoon.

      Once the jurors are excused, Kelly tells Hernandez she is “repeatedly testifying as to evidence in the case.”

      Kelly: I know the govt didn’t want to object in middle of your testimony – well, in the middle of Mr. Rehl’s testimony and questioning of him – but to say —
      Hernandez: I was trying to put a question mark on end

      Kelly: But there were numerous times you were trying to testify in the case and that’s just not appropriate.

    • harpie says:

      3:46 PM

      And we’re back from break.

      Judge says, before jury comes back, he’s been watching the jury and he’s happy with what he’s seeing – the marshall sitting behind Rehl in witness stand, his head is well below Rehl’s. Jury doesn’t seem distracted by his presence.

      Now the jury will come back in momentarily.

      Before they do, Rehl is in the witness box already. He yawns, takes a sip of water and now rocks the chair he’s sitting in back and forth, looking down at his hands as we wait.

    • harpie says:

      3:57 PM

      Rehl on social media use around Nov 2020 election: I shared a lot of things about the election, because the election was a hot topic at the time. Donald Trump made it very popular, that was all anybody was talking about. So it popped up in my news feed quite a bit

      H: Did you post any articles on social media at that time suggesting election was stolen?
      R: I’m sure I did. I also posted a lot of articles about the legal process. First of all, Dec 12 was part of legal process where Electoral College certifies individual states and once that was certified, then it moves onto Jan 6 and that’s where the certification came into play. I guess Donald Trump was trying to get senators to back his challenge of those electors already certified by those states

      “They all do it,” Rehl says of presidents disputing election results, launching objections.

      (Cross on this, I suspect, is going to be rough) […]

      Were you following Trump‘s posts? You keep talking about Trump’s desires…

      Rehl: [Trump] had a twitter at the time, he posted all the time about the legal process, he shared things from senators who were disrupting things in various states. Mastriano was one of them. Whether its true or not, I don’t know…

      Rehl continued: I recall one thing Mastriano shared was something Trump shared, more voters voting than actual registered voters…

      Rehl then says he thinks Mastriano is “a little too conservative for my liking”

      Sidebar requested from Hernandez. Husher on.

      • FourEmilias says:

        O/T and my apologies, but seeing as how Mastriano has decided to run for the Senate, one can hope the Casey campaign will reference this “honorable mention” in the PB trial. Not O/T – Thank you all for what you do.

    • harpie says:

      4:24 PM

      [Philla PB VP] Aaron [WOLKIND] was good at vetting and recruiting, Rehl testifies. He put him in with PBs, but did not admit him to MOSD.

      Hernandez: But when he said something, if you did not speak up or reject it right away, what — is the jury to understand that meant you agreed with what he said?

      Objection to what the jury should understand.
      Hernandez asks for a sidebar. Husher on. After it comes off, she tries again. Rehl neither objected or approved of Aaron’s commentary in chats

      Rehl: Are you asking me if he said something I disagreed with, what my position was on it or???
      Hernandez: Aaron was VP of Philly PB, in MOSD. And in a number of chat groups you were in. Correct?
      Rehl: A few

      Hernandez: Can you explain whether when he said something, if you did not reject it or agree to it, what does that mean?
      R: It doesn’t mean anything. He’s a grown ass man. If he says something that’s stupid, chances are, there’s gonna be 4-5 other guys who said something stupid

      Rehl continues, tone more pointed: For me to go into every single chat and go in and correct him and a bunch of people already did, that’s what we call beating a dead horse. First off, its not my job to police in a chatroom….

      Rehl: I don’t have to go into every chat room and tell every guy, hey you said something stupid. Just because I don’t correct him, doesn’t mean I agree with everything they say. I’m my own person, for one. And there was a lot of these chats. Can I go into this?

      She moves right past that question from Rhel.

    • harpie says:

      Jury is excused at 5PM.
      REHL’s testimony will resume tomorrow.

      5:06 PM

      Pattis has a motion in limine re: Pezzola’s proposed testimony…

      Pattis offers to cite the case to Kelly orally, but Steven Metcalf wants to issue it in writing.

      Pattis: This may be first time I have a legitimate right to request to cross examine a co-defendant (it pertains to an issue that didn’t come up on direct)

      Kelly: But if you’re saying Pezzola’s counseil wants to file something, would it be a motion on his behalf?
      Pattis: No it would be a motion on 403 grounds to keep him from raising certain items.
      5:09 PM Kelly says Metcalf will file whatever his motion is tonight (couldn’t hear him since he was far from mic) and DOJ can also respond tonight.
      And now, Kelly says he’ll see everyone here at 9:30 a.m. on Wednesday.
      And with that – I leave you.

      Thanks, Brandi!

      • Seashell says:

        Thank you, Harpie! Without the Thread Reader App, I can only read 4 or 5 of Brandi’s tweets before I get knocked off Brandi’s thread. I don’t know whether it’s my iPad or Twitter, but it’s annoying. This helped so much. Thank you, again!

  7. harpie says:

    This is the beginning of Brandi’s THREAD for today:
    [I’m not sure I can be around for all of it in real time, but will catch up later, if necessary.]

    6:15 AM · Apr 12, 2023

    It is Day 54 of the Proud Boys seditious conspiracy trial here at the Prettyman courthouse in Washington, DC.

    Proud Boy Zachary Rehl resumes testimony today and will come under cross examination by prosecutors. You don’t want to miss this coverage. I start live at 9AM ET.

  8. harpie says:

    [Already late…arrrgggg!]

    9:42 AM · Apr 12, 2023

    The defendants are here and so are the attorneys. We should be underway shortly.

    And away we go. Judge Tim Kelly is on the bench.

    Kelly: There were 2 issues teed up for me overnight. Let me address the one I think I can address quicker first. That’s the 1 regarding Mr. Pezzola – his potential cross.

    Kelly directs Metcalf and Roots to file one document to him. You’re two people representing one client. (Sounds chilly!)
    Having looked at it, I really don’t see if all the govt is going to do, and Roots, you mentioned a stmt that Pezzola reported that Nordean said…

    Kelly cont: The govt didnt respond to that or elicit that and it strikes me that it would be subject to a different analysis because unlike these other things, the video evidence doesn’t really support any of the other things and govt is saying they’re going out of their way..

    Kelly: to say these things were untrue and just something they’re going to suggest Pezzola is not telling the truth.
    So, assuming we’re just talking about the things the govt has laid out in its email re: Biggs and interaction with Mr. Samsel and what he said…

    Kelly: and govt will make clear they don’t think there’s any evidence of that beyond what Pezzola has said, it seems to me, they get to do that with all the details that Mr. Pezzola elicited and obviously, I do think, Mr Pattis, you’ll have a right to cross-ex on it….

    Kelly: I dont see how I can sanitize it, Mr. Metcalf, in the ways you proposed, in terms of talking about a material fact or something like that…

    • harpie says:

      9:51 AM Brandi:

      [(Sounds chilly!)] […] Kelly: I dont see how I can sanitize it, Mr. Metcalf, in the ways you proposed, in terms of talking about a material fact or something like that [] The details and elaborateness of what Pezzola said – it’ll be hard to communicate the nature of what he said and how it was untrue w/o those details….

      Metcalf: Similar to how your honor puts limitations on various different components of a trial, when you narrow down…. any witness with reference to their criminal history, you very easily could say that the questions presented to that individual haven’t been arrested so forth — what I’m proposing is around those similar lines…

      Metcalf, loudly, cont:
      The govt is seeking to elicit that he lied and lied about a material fact. This eliminates prejudice… to allow us to get into details, opens up the door to who, what, when, where, why.

      Kelly tells Metcalf not to shout.

      Metcalf apologizes for shouting then: It calls into question what was the surrounding circumstances, what was going on with his atty and what advice was being given and the pressure put on him to essentially create and fabricate these lies

      Metcalf: It calls into question him being in jail, not getting medication at certain pts, suffering from withdrawals that then, I’m going to have to dive into.

      I ask you to consider these things in their totality in addition to substantial prejudice of these details coming in

      Kelly: It seems to me if he wants to explain why something he said is false, he has a right to do that.

    • harpie says:

      10:00 AM Brandi:

      Norm Pattis for Joe Biggs now tells Kelly he doesnt want evidence brought in about a gun and Joe Biggs. It will be associated with his client in ways that are hard for him to undo, he says.
      “Even the govt doesn’t believe Samsel saw it…”

      Pattis also adopts Metcalf’s prejudice argument this morning.
      Kelly then says its possible on 403 grounds his ruling would be different on this if he didn’t think govt was taking the position that it was false and elicit testimony that it was false, but we have a lot of video….
      Kelly cont: …obviously its not the govts position that Biggs did not have a gun. and if I’m going to allow this, we should be trying as hard we can to make clear to jury, there is no evidence of that or that’s not the govt’s position

      Kelly: Has door been opened at all to notion that Mr Rehl used images of violence from prior rallies to encourage ppl to join the PBs based on his testimony already given. I’ve looked at transcript and saw what Mr. Kenerson laid out…

      Kelly: I don’t see how that door is not opened. That doesn’t suggest all this video material are in at all but I don’t see how that isn’t impeaching of him in some degree to extent he’s sending certain materials out there…

      • harpie says:

        Kelly: I don’t see how that door is not opened. That doesn’t suggest all this video material are in at all but I don’t see how that isn’t impeaching of him in some degree to extent he’s sending certain materials out there…

        Kelly is reading the transcript from Rehl’s testimony from this portion now, asking Hernandez to address it in court.

        [Brandi links to from 4:08 PM, yesterday]: https://twitter.com/Brandi_Buchman/status/1645881626625470464

        Rehl cont: One of those ways was MOSD. We didn’t want guys coming in, thinking, because they saw fighting on YouTube, that’s what we were about. That’s what MOSD was about, as much as possible.

        Hernandez: That video the govt is trying to introduce did not mention the Proud Boys or recruiting for the PBs

        Kelly: ok, just stay with me, before we get to the factual particulars, do you agree that opens the door to the concept of recruiting based on violent videos?

        Hernandez: As I tried to lay out in the emails, I don’t think any of this is relevant

        Kelly: Please stay on topic, we will never get through this if you don’t stay on topic. Why hasn’t door been opened

        Hern: Because he doesn’t —

        Kelly now reprimands her for turning her head.

        • harpie says:

          Wow…this conversation between Kelly and Hernadez[REHL] is really something else, and I’ll continue on this part later.

      • harpie says:

        10:11 AM

        It is heated now.
        Kelly and Hernandez are going back and forth, voices raised.

        Kelly tells Hernandez she is being disrespectful.
        “Listen to me right now, stay on topic and look at me respectfully, do you understand?” Kelly says

        Hernandez: I always look at you respectfully and always respect the court’s ruling. Which is not the case on the other side. I turn around so I do not disrespect the court

        Kelly: No no that’s an inherent problem

        The problem i I have obligation under 6th A to represent my client. I understand the court is Hernandez: No, I’m asking a question and I try to respond to the court first.

        Kelly: The reason I cut you off, and I’m sorry for that is because I tee something up for you and you don’t address it…. if I don’t focus you on the question, we’ll never get through this. Whether I do it or not, I don’t want you turning your back to me disrespectfully again.

        Hernandez: I would request the court allow me to make a record

        Kelly: you’re entitled, I’m trying to make an evidentiary ruling but you don’t have a right to wander onto topics I haven’t asked you about. so I’m asking you to address the question of whether door has been opened to impeach your client

        [I’ll drop this now, so I can get to more current conversation]
        [The faster I go the behinder I get…]

    • harpie says:

      10:37 AM

      The jury has not even come yet (They’ve been waiting at least an hour) and before they all break, Kelly asks her [Hernandez] how much more time she thinks she will use for direct and she says she doesn’t know.

      We are having A Morning.

      10:58 AM

      And we are back. Zachary Rehl is on the witness stand before the jury enters.

      Hernandez says the FBI agent who had alleged evidence of violence on Rehl’s home; he was sent out of courtroom, perhaps to be unavailable… I don’t know…perhaps to get this information…

      (Kenerson’s face says: this isn’t the case)
      Kelly: At the moment, there would be no reason for that agent, or govt to send that agent outside of the courtroom not to answer questions because I have no answers to pose to that agent.

      They go back and forth. She interrupts Kelly at least once. Then Kelly asks the govt tor respond.

      Mulroe: The agent went to try and track down and provide the information Ms. Hernandez has requested. Her suggestion that we may have banished him from courtroom to make him unavailable is simply absurd.

      Hernandez: I said it was a possibility they sent him out to look for information and another possibility they sent him out…

      After a few minutes, before the jury enters, Hernandez says she needs a personal break. Kelly permits it. She leaves. And Kelly says if jury comes in while she’s out, he’ll turn them right back around until she returns.

      11:00 AM Hernandez is now back and the jury is coming in.


    • harpie says:

      11:02 AM

      And now we continue the direct examination of Zachary Rehl.
      Rehl is still under oath. He is in a dark suit, light shirt and blue and white striped tie.

      Hern: I’m going to ask you some questions about activities with the PBs and other events before 1/6. Let me talk first about Mr. Bertino. He mentioned term of “tip of spear” in his testimony
      R: I remember hearing him say it on video

      11:06 AM

      Hern: You were at the MOSD meeting on 12/30?
      Donohoe made comments in that video.
      Rehl: yes he did
      H: Did you or did you not understand that he was agreeing to concept of MOSD as a self-defense
      Objection. Leading. Sustained.
      (We’re running into the same problem as yesterday)

      11:07 AM

      Rehl looks more tense today.
      He also seems like he’s a bit fidgety and anxious. He goes to touch the mouse for the computer in front of him and when Hernandez says, “Let’s talk about Mr. Pezzola,” he draws his hand back, then turns palm up, like an “IDK” gesture almost

    • harpie says:

      11:07 AM

      Rehl looks more tense today.
      He also seems like he’s a bit fidgety and anxious. He goes to touch the mouse for the computer in front of him and when Hernandez says, “Let’s talk about Mr. Pezzola,” he draws his hand back, then turns palm up, like an “IDK” gesture almost

      Hernandez takes a beat after asking if Rehl knows Pezzola. Now brings up texts from Dec 2020 between Rehl and filmmaker Nick Quested. Nick sent Rehl a pic from the rally. The photo is at night of PBs marching in DC. Rehl is in picture with Tarrio and Pezzola.
      Rehl: Now I know, its myself and Tarrio and Pezzola. But at the time, I did not know Mr. Pezzola.
      Later he testifies:
      We all went to the park, gave a speech to Trump supporters and that was that. That was it……
      a picture is worth a 1k so this is a prime example of that.

      11:18 AM

      Rehl cont: …and that’s all I knew. The capitol’s huge, which window, I didn’t know until I actually seen it.
      H: But at time it was happening, you didn’t see pezzola breaking that window?
      R: No i wasn’t in that area at all

      Hernandez now doing clean up from his testimony yesterday: he bought the beer on his way to DC on 1/5, Rehl testifies.
      Now she asks about the quantity. He says a case of 30…4 30-packs.

      • harpie says:

        11:37 AM Brandi:

        Rehl manages to squeeze in side remarks as he testifies often, again, that sound defensive, defensive of Proud Boys, of what happened on 1/6. If jurors are looking for a more remorseful-sounding defendant, I can’t say they’re totally getting it here.
        Did Biggs follow Rehl on Parler? Biggs?
        R: No I don’t think so.
        Did Tarrio?
        I think he did, he followed a lot of people
        Did Pezzola follow you on Parler?
        I have no idea, I don’t think so
        Did you follow Pezzola on Parler?
        I don’t think so

      • harpie says:

        11:48 AM Brandi:

        Hernandez: I think when we left yesterday, I asked you a couple questions… about the Biden presidency
        H: Did you, on 1/6 or shortly thereafter, send any msgs about accepting the fact that Biden was president?

        R: I accepted that fact prior to –I sent msgs to ppl where I…specified that i didnt think trump was going, i guess, whatever, to play out the legal process. and you know, i, i said to ppl the next day, we needed to start preparing for biden presidency.

        H: Whatd that mean?
        Rehl: There were a lot ppl holding out hope – again we spoke of Mastriano who was one of those guys who could pull a rabbit out of his hat and take the presidency legally. After 1/6, i knew how it worked -‘end of of the line guys. gotta prepare for biden and..he’s the president now
        H: do you accept that biden is president today?
        R: yeah absolutely

        (Rehl is still for a moment after this, but then fidgets with computer mouse in witness box)

      • harpie says:

        They’re discussing how Telegram works, then:

        11:55 AM

        How often did he check his social?
        Rehl: I mean, how often do you check Facebook or Twitter. I got banned off all social media, it was all I had, so when I got bored, I’d flip open phone and see what guys were talking about or whatever.

        [Brandi on the side]:
        I’d wager this is coming up on cross.

        Hernandez is asking questions of Rehl as if he is a digital forensic expert. Truth is, he’s not. So for the last few minutes, we’re getting lengthy testimony from Rehl about how Telegram works, how he can or cannot tell who is seeing what msg

        Rehl, as he testifies about how chats appear, he remarks, “now the government has showed you and stripped all that out —

        Kenerson objects, non-responsive, move to strike.
        Sustained as to last, Kelly says

      • harpie says:

        12:14 PM

        Hernandez brings up a text from MOSD Main 2 on 1/7 where Rehl writes “I find this hard to believe now. I’m proud as fuck of what we accomplished yesterday. But we need to start planning and we are starting planning for a Biden presidency.”

        Now, above this msg from Rehl, E-Geezy writes: “Have faith brothers. We did our part yesterday, POYB”
        A text above this one is from Joshua Maxstud and its blank, indicating it may have been deleted.

        Hernandez asks what he meant in the msg: “I meant the protest, it never happened like 1/6 before. What I saw, was huge crowds of people waving flags, protesting and I was proud to be part of something like that. like I said, it was a historical moment.

        The line about preparing for Biden presidency, Rehl says, was about telling people to “stop with the conspiracies”

        A moment later, Hernandez elicits testimony from Rehl about what he says he saw on 1/6.
        Rehl: I seen some people being rowdy, shaking barriers. At time going through my head, i thought these ppl must know where the stages are… you’re giving me this look, but its the honest gods truth (clears throat)
        H: Your perception was what you described in that moment?
        R: Yes

      • harpie says:

        12:17 PM Brandi:

        Video now from initial barrier breach that was shot by Rehl. Hernandez asks if the voice in the video saying “fuck it storm the capitol” is his?
        Rehl testifies it is not.
        He testifies he didn’t hear anyone say that at the time but can hear it now.

        Rehl testifies that he was furhter back in crowd as rioters breach barrier. He advanced forward to see what was happening.

        (He’s said this a lot today, often testifying that he’s doing “investigating” of whats around him)

        A man with a black megaphone was disrupting what Proud Boys, like Joe Biggs, were trying to say, like “fuck antifa,” Rehl says, at the area of initial breach.

        [Continuing directly]

        Rehl testifies that the man with the black megaphone told them: “‘You can f-antifa all day long, this is where it’s at,’ something along those lines and pointing to the Capitol.”
        He continues: “He had his whole own crowd of ppl he showed up with when we met”

        Rehl says he and the man holding the black megaphone never met before.

      • harpie says:

        12:30 PM

        And now, Kelly stops Hernandez, asks her if its a good time for a break so we can go to lunch. She agrees and the jury is dismissed.

        Due to the delays this morning, I don’t think Pezzola is getting on the stand today.

        Court breaks for lunch until 1:45 p.m. ET.

        Brandi is evaluating where we are in the process and thinks there’s a 50/50 chance we may get to closing arguments next week…things might move slowly if objections are launched at length or parties get bogged down infighting with the judge.

  9. harpie says:

    A THREAD today about REHL, from Capitol Hunters [who always comes with receipts]:

    8:56 AM · Apr 12, 2023

    Tune in to the Proud Boys trial today for what should be a bloodbath of cross-examination of Zach Rehl as prosecutors get to ask him how it felt to watch violence like this: W Plaza, 1:16 PM when he can be SEEN watching it, along with Proud Boys leaders. (h/t @creek_twit) 1/ [VIDEO]
    DOJ got Stewart Rhodes convicted of seditious conspiracy even though his men did little and he got lost at the Capitol. The Proud Boys led the attack, and Zach Rehl narrated it in real-time. DOJ had this kind of video within weeks of the attack. It won’t go well for him today. 7/

    • harpie says:

      2:04 PM Brandi:

      And we resume.
      Hernandez (for Rehl) begins with a video exhibit.
      This is again the footage Rehl shot from 1/6 at time of initial breach. He said it wasn’t his voice in clip saying “storm the fucking Capitol”
      She wants to ask him if there is other info he can provide on this…

      REHL thinks the voice that said that is behind him while he’s taping, and id’s a man who it MIGHT be.

      2:11 PM

      Rehl testifies that “you can hear my voice clear as day” in another clip, when the Pence motorcade passed by him and other PBs on 1/6 and they thought it was Trump.
      Rehl in that clip says, “that’s donald fuckin trump!”

    • harpie says:

      2:17 PM

      You and PBs had no intent to attack the Capitol?
      Objection, compound.
      H: At this point, you personally had no intent if any –
      Objection, leading. Sustained.
      H: Did you or did you not intend to attack the Capitol?
      R: “We” –
      Objection. move to strike, non responsive.
      H: What if any intent did you have at this point to attack the US Capitol? (this is from initial breach)
      Rehl: Absolutely not, never did it once cross my mind to attack the Capitol

      Hernandez asks if Nordean said anything about attacking the Capitol at this point and Rehl says no. Before she can even finish her sentence to ask if Biggs did too, Rehl answers no.

      Rehl then doubles back to a question Hernandez started to pose about the man with the black megaphone but instead veers into his thoughts about what was happening during moment of initial breach.

      Rehl: “I had a bunch of thoughts going at once because i thought you were asking me about guy with black megaphone –when we collided with this crowd, it was a rally crowd and my understanding was somewhere in this area…

      There were supposed to be stages set up. Now, I’ve been to multiple Trump rallies, everyone knows, at least, most ppl know, Trump attracts large crowds, some people camp out. Given that this scenario was unexpected, thought Trump would go to Capitol at all..

      Rehl cont: …I’m not trying to downplay anything at the Capitol that day. This scene here, it was a huge crowd of people trying to find the stages and rush them… that’s what ppl do they want to be in the front, its like at protests, concerts.

      • bmaz says:

        Lol. “Intent” has always been a fickle thing at trial, beware of putting the defendant in the chair to talk about it.

    • harpie says:

      2:25 PM

      Hernandez brings up Parler post where Rehl shares a photo he took that is facing towards the Wash Monument on 1/6, large crowd. He says this is what he’s talking about earlier, these are types of photos he would take that day.
      H: And today as you sit here, whats your opinion of what happened on 1.6?
      Rehl: I think what ultimately unfolded, all the violence, was a disgrace, I do. Ultimately, its not the sole reason, but it didn’t do any good.
      It didn’t do Trump good that day. It disrupted the legal process and like i said, anybody who saw assaulted cops, theyre charged with that and rightfully so. At the time i was down there, it looked like a big giant protest..

      2:29 PM

      Hernandez brings up Jeremy Bertino (who has already flipped on PBs and pleaded guilty to seditious conspiracy)… he was violent on 12/12?
      Rehl says Bertino appears to be the aggressor that day and he remarks, “ironically he was in leader’s chat” That’s the kind of behavior we wanted to rein in, Rehl says of Bertino

      Rehl then testifies: I left the Capitol around 3:30 and went out and got drunk with my friends. Proceedings were suspended at some pt… lawmakers said they would object… after the riot happened, when I woke up the next day, it came out that…

      Rehl cont: …a lot of [inaudible] turned their back on Trump and revoked their intended objections and at that point, they blamed what happened at the Capitol for why they did it. I was hungover, stressed, hungry… i said a bunch of shoulda-coulda-woulda crap [in chat]

      Rehl: After I got done eating, i chilled out, relaxed and i said to everybody, hey we gotta prepare for a biden presidency because that’s what’s gonna happen

    • harpie says:

      2:34 PM

      Hernandez: you think they started leaving because– ppl started leaving [the CAPITOL] because of the violence or because of the objections…?
      Leading. Overruled.

      Rehl: I don’t understand the question.
      Hernandez: What is your assessment today of how what happened on Capitol on 1/6, violence, destruction of property, how that affected the votes of the congressmen?
      R: Like I said, that did have an effect on what they did. They were mad about it and they blamed Trump for it…
      Rehl continued:..I guess you could say rightfully so, the people who committed violence, like i said earlier, ruined the legal process that Trump tried to put in place.

      2:39 PM

      Hernandez has drawn at least two objections this afternoon from prosecutors for asking the same question – did Rehl commit violence or ever commit violence at an event specific or otherwise. He has said no both times this afternoon and he said no when asked before lunch.

      Hernandez is taking her time looking through notes.
      After taking a solid minute with the courtroom in silence, Hernandez asks for a sidebar. Husher on.

    • harpie says:

      2:45 PM Brandi:

      Husher off after roughly 2-3 minutes.
      Hernandez holds her finger up and says II’ll tell you in one minute when Kelly reminds her to use the mic because he can’t hear her (she had turned to say something to AUSA Kenerson)

      I observe Kelly leans back in his chair at this.

      2:48 PM

      Now, video footage is pulled up. It is from inside the Capitol, senate wing, i believe, ts thick with people as they are already in the hallway and pouring in through the windows/doors. You can’t see an inch of the floor. There is a line of police wildly outnumbered in a line

      Hernandez: Did any of these officers ask you not to come into the building?
      Rehl: No they did not.

      The video continues. Rehl then IDs who is coming in through the busted open door: Freedom Vy, Isaiah Giddings
      Rehl then proceeds to ID Brian Healion at this time.

      The video footage continues. Rehl is watching closely. He yawns widely.
      H: Were Biggs, Nordean, Tarrio or Pezzola in this group?
      Rehl: No

      Does Rehl know any of these people? (she circles a large area with several people, many faces turned away from CCTV)
      No I do not

    • harpie says:

      2:53 PM

      H: At this time, it your impression Pence wasn’t in bldg?
      Rehl: I had received a msg probably 10 minutes prior saying he was evacuated.
      H: And as far you knew, no congresspersons were inside Capitol at that time?
      Rehl: Correct, I was –Yeah.
      H: What did that mean to you?
      Rehl: It meant to me, at the time, I didn’t know exactly why it stopped. Obviously, going in there, you could see a little bit, 2&2 together probably had something to do w/it. When I went in, ppl were getting led in at the time and that’s ultimately why I decided to go in.

      Hernandez now appears to be going slowly through her notes again.

      2:55 PMCourtroom is quiet. I observe Norm Pattis has taken off his glasses and is squeezing the bridge of his nose.

      AUSA Kenerson, who is seated at the prosecutors table right behind Hernandez, then whispers something to her about an exhibit number (he was just barely audible) and this appears to be what she was searching for.

      Rehl says footage Heranndez pulls up shows him leaving the crowded senate hallway to look for a bathroom. He walked to the end of the hallway and found one there, he testifies.

      Rehl says when he left around 3:30, he couldn’t get an Uber so he walked back to his hotel. The Darcy.
      (Nice digs!)

      • Seashell says:

        Does anyone think that yawning widely (and more than once) is a good thing to do in front of the jury? Maybe Hernandez should have mentioned that to him?

    • harpie says:

      3:00 PM

      H: id you use any force on Jan 6?
      R: No I did not.
      H: Did you conspire or agree to use any force with any of these gentlemen on 1/6?
      I’m talking about Biggs,
      I understand. No.
      Pezzola, Nordean, Tarrio?
      Mr. Bertino?

      Hernandez: What was your intent at the Capitol on 1/6?
      Rehl: My intent? My intent was just to participate in a protest and get my voice [to] be heard

      H: On 1/6, did you act corruptly?
      Objection, legal conclusion. Sustained.
      She asks for a sidebar.

      Hernandez: On 1/6 did you stand to gain any benefit personally?
      Rehl: Personally? No.

      H: Anybody pay you money to be there — strike that – did anyone offer you a bribe?
      He doesn’t understand at first. She asks again.
      Hernandez: Did anybody offer you a bribe to do whatever it is you did on Jan 6?
      Rehl: I mean, I didn’t do anything but walk around all day?
      H: Did you accept any bribes on behalf of Mr. Trump?
      Rehl; No I did not

      Did you agree with Nordean to accept any bribes from Trump, Tarrio, Biggs?
      Rehl says no to all

      Did you intend to obstruct, impede proceedings going forward?

      Hernandez: Did you intend to influence hte proceedings?
      Rehl: It depends what you’re asking. We hoped the legal process would play out in favor of Trump but it needed to play out, and that’s the thing, it needed to play out

      Did you gain any financial benefit of being there?
      Rehl waits a beat, “I mean, no, specifically no.”

      Did you intend to obstruct a proceeding?
      Rehl: No, I didn’t go in until I thought there wasn’t anyone in there; The capitol was a public bldg, I thought it was fair game to go in

      3:08 PM

      Hernandez is going down the charges one by one, asking the question, did he enter into any agreement to prevent any member of Congress from discharging duties etc
      Objection: asked and answered
      H: I’m going thru the elements your honor
      K: It’s been asked and answered. Sustained

      If the plan from Ms. Hernandez today was to filibuster or slow down proceedings to a grinding halt, she is doing a great job so far.

      Still going down the list of charges and asking him if he intended to do any of them.
      The man has pleaded not guilty. The jury knows this. Whether this is useful to them, I don’t know. But it’s a risky move by Hernandez for a few reasons. It could tick jury off, #1.

      • harpie says:

        [Continuing directly]

        If Hernandez is filibustering, which, again, I don’t know if she is doing it purposefully but if she is, this strategy cuts both ways. She may think, well, with court out on Thurs/Fri, its 5 days for jurors to let Rehl’s testimony stew if we don’t get to much cross today…

        But that’s also five days for jurors to think about quite a lot. Including thinking things that may not be sympathetic to her client. That’s five days to compare whatever notes they may have from the last 53 days to what Rehl is saying today.

        3:15 PM
        Hernandez is still going down the charges one by one and asking Rehl what he intended. Latest question: Did Rehl aid anyone with throwing a water bottle at a law enforcement officer?
        Did he abet?


    • harpie says:

      3:28 PM Brandi:

      I went upstairs for the last 10 mins to see how the jury was faring while Hernandez continues her direct examination.
      They appear to be flagging a bit. Though paying attention, I note at least 3 jurors looked particularly fatigued…

      One juror, while the husher was on, was leaning back in their chair with his arms behind his head, in a resting position. Once husher was off, juror dropped hands down. Meanwhile, another juror was resting their head on their hand, looking quite tired.

      I didn’t see any notetaking by jurors, by my eye, during the 10 minute window I was up there.

      3:33 PM
      We are on a brief break now. But we should resume shortly.

    • harpie says:

      3:37 PM Brandi:

      Break over.
      Kelly asks who will handle cross of Rehl. It will be AUSA Erik Kenerson today.
      Kelly says he wants to bring the jury in and begin cross…
      Sabino Jauregui for Henry Tarrio says he wants to direct Rehl
      Kelly asks him about what
      Jauregui says Tarrio was brought up..

      3:44 PM

      Kelly isn’t sure what trial procedures says about this and asks Kenerson; Kenerson says he isn’t sure but he doesn’t seem inclined. Kelly brings up the rules..

      • harpie says:

        Kelly: Trial procedures order did not make any distinction between a witness and a witness defendant but what it did say, as I recall, is something along lines of… if this was a witness party would call later in their case, it doesn’t apply in same way as it would to another witness. So, I’m not so sure, it operates in the same way.

        Jauregui: I would argue, once he took the stand, i have the right to question him and conduct a direct no different than any other witness. if this would have been a civil case, i would be able to call him.

        Pattis: We do not intend to call him, it would have never occurred to me to call a co-defendant to testify…

        Kelly asks for govt’s input if it has any

        Kenerson: Our position is since he’s waived his 5th, he’s open to co-counsel calling him, that’s our position. We would note, there was a lot of Herandez’s question could have crossed line to leading, we did not object to it, we did it sometime, but we’ll be making very strong… objections to any leading questions by Tarrio’s counsel

        3:45 PM
        And Kelly decides to let Jauregui conduct direct of Zachary Rehl.
        Kelly asks Jauregui how long his direct will go.
        Jauregui says until the end of the afternoon.

        AUSA Kenerson leans back in his chair at this, drops his arms to his side and the frustration is visible on his face

        Jauregui says he doesn’t know how long it will take because he isn’t sure if govt will give him the same courtesy they gave Hernandez and not object to every question.

        (This is a rich statement coming from anyone on this defense team – let’s be real)

        AMEN! Brandi!

    • harpie says:

      3:50 PM

      Sabino Jauregui now conducting direct of Zachary Rehl
      Have you ever testified at a trial before?
      R: Yes I have – it was a bench- –
      Objection relevance. Sustained.
      Jauregui: Ever take moot court —
      Objection relevance. Sustained.

      When was the first tiime he met Tarrio? 2019, he says, but timing he isn’t totally sure of.
      J: Are you friends?
      Rehl: I mean, yeah
      J: Are you besties or best friends?
      R: I don’t call him up all the time….I’m friendly with him and would call him a friend

      How does Rehl view Tarrio as a leader?
      The front half of Rehl’s testimony was inaudible but then he says, Tarrio’s always the type to pick up a phone, to help
      Did Tarrio try to make sure PBs got along and didn’t fight?
      Objection. Leading. Sustained.

      3:56 PM

      Does Enrique say outrageous things to get media attn?
      Objection foundation. sustained.
      Jauregui reframes it, and elicits from Rehl, Yes Tarrio “trolls” media. He explains it to jury: “basically if you say something outrageous on social media, you can generate likes, clicks…
      Rehl cont: … or shares. Social media is, the thing is, its all powered by algorithms and they need to have some sort of engagement for you to get more attention to your page. so some guys if pg is not getting enough engagement, they’ll say something outrageous

      • harpie says:

        3:58 PM

        Rehl says yes, when asked by Jauregui, Tarrio would troll online before a major event to promote it.
        And once it got down to it, yes, he affirmed to Jauregui, Tarrio would then “pull back.”

        (How about the time he burned that flag, I wonder? Was that pulling back?)

        Was part of the function for PBs at rallies to go out and get your picture taken by media, recorded by media?
        Objection. leading. Sustained
        He reframes.
        Rehl: it depends. a lot of time we wanted to raise awareness and show ppl we could throw a rally and be peaceful…

        Rehl: Part of that was image and to put a positive image because we do have a bad image and a lot of times, we try to show, we’re not always as bad as people say we are and those marches were for those reasons

        Jauregui: Do you think PBs image was distorted by the media
        objection relevance overruled
        Rehl: I think a lot of it was, for an outsider looking in, they don’t understand our culture. we joke around with each other. an outsider looking in might think we’re horrible people but o us — they’re not part of a fraternity and they don’t understand what its like.

      • harpie says:

        4:04 PM

        Jauregui asks about PB charity work. Objection is sustained.

        Jauregui reframes, draws another objection. Jauregui then asks how Tarrio became a fourth degree proud boy?
        Objection to hearsay. Jauregui tries it again. After another objection, he gets it through.

        Jauregui: How did Rehl know Tarrio was a PB?
        Rehl: He told me.
        Objection hearsay, move to strike.

        jauregui laughing, smiling. Kenerson is not.

        4:05 PM There was another minute or two of direct by Jauregui but I missed the question. A moment after this, Kenerson asks to go to sidebar.

      • harpie says:


        4:15 PM Brandi:

        We’re hearing the same testimony dif flavor. […]


        4:17 PM

        Now, Rehl says the radios were working on Jan. 6.

        We’ve heard testimony all over this place during this trial about whether those radios were working or not. According to Rehl, they were.

      • harpie says:

        4:20 PM

        Jauregui brings up the PB 12/30 video conference call – were PBs speaking in some special code that only prosecutors understand?
        Objection, argumentative. Sustained.

        Tarrio’s atty reframes and Rehl testifies: It was a private chat, if we weren’t telling the very guys we were recruiting for this the truth, these were guys we were bringing in, we’re telling guys this is exactly what we expect of them. there was no code

        J: You weren’t recruiting an army to come here to the capitol on jan 6?
        objection relevance cumulative argumentative 403
        sustained to argumentative.
        J: looking for a fighting force for 1/6?
        Rehl: no i was not

        Jauregui brings up a chat from MOSD after Tarrio was arrested on Jan 4th… Rehl testifies that Tarroi getting arrested for vandalism “was a monkey wrench in the whole thing” prompting him to ask questions to group about next days

        Jauregui wants to admit a Cellebrite report and shows it to Kenerson. Kenerson objects. Sidebar. Husher on.

      • harpie says:

        4:33 PM

        Did Tarrio invite Pezzola into MOSD?
        Rehl: No
        Invite Pezzola into Boots on Ground/
        No he did not
        Do you remember who invited Pezzola to Boots on Ground?
        I didn’t even know who Pezzola was at the time and after the fact, never bothered to look

        J: Do you know who created the 1776 Returns document?
        No, i don’t, Rehl laughs. I’ve heard things in this courtroom, but I had never seen this document before in my life.
        j: Ever receive it in an email or chat?
        r: No
        j: Read or possess it in any way?
        r: No

        Jauregui: Was 1776 Returns discussed in any chat whatsoever?
        Rehl: Not any chat I paid attention to and if it was, I didn’t see it
        J: On 1/6, were you acting in any sort of plot or plan from 1776 Returns?
        Rehl: No

        Did Enrique ever tell you about 1776 Returns?
        Rehl: If he did, we would’ve spoken about it in chats and you’d be reading about it right now.
        J: Was 1776 Returns ever discussed at meetings, like the dunk tank video or at meetings?
        R: No it was not discussed

        4:36 PM

        Jauregui continues to draw leading objections from Kenerson today. He does it again after asking about purpose of MOSD and after some reframing of question, Rehl says, MOSD was about protecting members etc

      • harpie says:

        4:38 PM

        Why didnt you want to wear colors on 1/6?
        Riight before 1/6, there was an event going in GA, and I believe Enrique showed up to it
        Objection foundation hearsay.
        He showed up to an event in GA and GA chapter didn’t want him there. They made it loud and clear….

        Same objection, hearsay. Overruled.
        Rehl says the GA guys were mad after seeing what happened in DC in Dec 2020 and he testifies, after this, PBs negotiated between themselves not to wear colors for 1/6.

        [This is NOT what was said about wearing colors in real time!]

        11/8/20 10:08 AM

        BERTINO: By the way we’re going to Raleigh this afternoon.
        TARRIO: Make sure…no colors
        B: Why not? Those wheels are already in motion.
        T: The campaign asked us to not wear colors to these events
        B: Ok
        T: Keep identifying colors to a minimum.


      • harpie says:

        4:42 PM

        Rehl testifies that he had “no, none” understanding of a plan for 1/6 with the defendants.

        I observe Pattis pass Jauregui a note.

        Does Rehl remember what Matthew Greene said during his testimony?
        Rehl can’t “He was one of the early ones”
        Did Bertino testify to any specifics?
        Do you agree with Bertino’s testimony?
        Objection relevance sustained on both.

        J: Bertino understood there was a metaphorical objective for…
        Objection, leading.
        Do you share Bertino’s objective about Jan 6?
        R: No and IDK how he came up with it
        J: Do you know how he came up with it?
        Objection. Asked and answered.

        Jauregui smiling, laughing.

        Jauregui really seems tickled with himself when he asks a question, draws an objection, reframes it, draws another objection from Kenerson.

      • harpie says:

        4:57 PM Brandi:

        Same testimony we heard earlier when Hernandez directed.


      • harpie says:

        5:04 PM

        I thought I heard Kelly say earlier we had a hard out at 5 pm today, but I presume since its now 5:03, perhaps on a sidebar, Kelly agreed to let Jauregui finish his direct today so this also wouldn’t be pushed out to next week.

      • harpie says:

        [Continuing directly]
        5:09 PM

        Jauregui plays video of Nordean using bullhorn addressing crowd before breaches.
        J: Do you hear Nordean say we’re going to the capitol to make a presence (this in video as they march). Can you explain to jury what that means?
        Objection, speculation, sustained.

        Jauregui: You were there?
        Rehl: Yeah
        J: At the Monument?
        R: Yeah
        J: To pt here that you’re stopped?
        R: yeah

        auregui: Do you think the words coming out of Nordean’s mouth are true? He’s not talking a secret code, no PB secret handshake type language?
        Objection. Leading. Argumentative. Sustained.

        J: Is Nordean speaking in “Minecraft”
        Rehl: you see what was going on, was making complete sense
        obj non responsive. sustained

        J: After Capitol, what was plan?
        r: To turn back and go to rally.

        (we’ve heard a lot of testimony, incl. from defense witnesses, that attending rally wasn’t priority)

        Jauregui shows video where PBs are still on the march toward Capitol
        J: Here you are chanting fuck antifa?
        Jauregui comments, its their “greatest hit”
        Rehl: Yes, it kind of gets old, but yes.

        Still no plan among them at this point either, Jauregui says as video shows them on the march a few moments later.

      • harpie says:

        5:12 PM

        Now Jauregu playing more video, this time asking who people are following PBs
        Media, Rehl says
        Was Nick Quested with you the whole march?

        Know a lady by name of Amy Harris?
        She’s a photographer I know of, Rehl testifies.
        Jauregui: was she with you throughout the whole march?
        Rehl: Yes she was front and center of us the whole time

        Jauregui: Tough to do a conspiracy with media watching?
        Objection. Sustained.

        Speaking of greatest hit’s that one is definitely Jauregui’s.

        Jauregui plays video of PBs in a prayer circle. As it plays, Jauregui asks if they are heard praying to “soften the hearts that are harder” and Kenerson objects. Its sustained.

        Jauregui: Were you guys praying to stop certification?
        Objection. Argumentative Sustained.

        More “fuck antifa” chanting video. J. asks Rehl if he can see Nordean making a hand gesture towards a man in the street. Rehl isn’t sure. Jauregui plays it again. Jauregui makes a hand waving gesture. Did Rehl see it now? He did. Why did the man do it?
        Obj. Spec. Sustained

        Jauregui asks if the hand gesture was meant to shoo an older man away.
        J: Can a lrg group of PBs just stop on a dime?
        Rehl: No they cant
        Jauregui asks what happens if a large gp of men who can’t stop would bump into someone like this; they’d get run over Rehl says (paraphrase)

        Video plays. Jauregui asks if this is where PBs had lunch at food trucks. It is.

        5:21 PM Kelly asks Jauregui if this is a good stopping place.
        J: Sure judge […]

        5:25 PM

        Kelly: Given how today has gone, I’m afraid we’re going to have unexpected issues pop up tomorrow. So let’s start at 9 am tomorrow, not 9:30, given unexpected nature of this afternoon’s testimony

        And that’s it from me tonight, folks. Thanks for following along!

  10. harpie says:

    Since the jury is not meeting today, Brandi will not be live tweeting,
    but promises a new article here at emptywheel!

    Roger Parloff is back on the job, and will be tweeting to cover the “legal wrangling”:

    7:41 AM · Apr 13, 2023

    It’s Apr 13 and Day 55 of the Proud Boys trial. I’ll be live-tweeting here and on http://Lawfareblog.com: https://bit.ly/3QKlKii. I’m back in the country after a death in the family; thanks for all the very kind expressions of concern. … /1

    At 9:08 AM he reports that there will be a closed session to start.

    • harpie says:


      10:10 AM https://twitter.com/rparloff/status/1646516128511045634

      So here’s what happened. This morning, at about 8:50am, the the screens in the media room were still off, as they often are. So I called the media tech guy, as I often do, to remind him to turn them on. …/5

      … He didn’t answer, as also often happens, so I called the tech hotline which the tech guy leaves on his phone. A member of the hotline team came down and turned on the screens…. /6

      … The judge then came out and said, “So we’re in sealed session, right?” The session then proceeded for about 15-20 minutes. After that the court deputy advised the court that the media room was able to hear what was going on. They then closed the session. …/7

      … The defense attys, accompanied by a prosecutor, then came to the media room to, basically, beg us not to use the material until after the case is over. (The prosecutor did not speak, since that might create 1st amendment issues.) … /8

      There were other news organizations in the room besides me by the time the session started. So it’s likely that one of them will soon report what happened. Given the nature of Lawfare’s editorial mission, my editor has asked me to respect the court’s seal. … /9

      10:23 AM Otherwise, we are still under seal, and our monitors are turned off. /10

        • harpie says:

          Yes….They are still under seal, I imagine, since Parloff hasn’t tweeted again.
          I’ve done a cursory search of people I follow, but I don’t think anyone has written about what they heard, yet. I hope no one does…this trial doesn’t need any more drama.

      • harpie says:

        Judge in Proud Boys case denies mistrial motion after jurors report being followed http://edition.cnn.com/2023/04/13/politics/proud-boys-mistrial-motion-denied/index.html Hannah Rabinowitz, CNN Published 12:13 PM EDT, Thu April 13, 2023

        The federal judge overseeing the trial of five Proud Boys members who are accused of plotting to storm the US Capitol on January 6, 2021, denied a mistrial motion on Thursday after jurors reported being followed and confronted in public.

        In late March, several jurors reported two incidents in which they were approached outside the courthouse by members of the public, District Judge Timothy Kelly said in a sealed proceeding Thursday that was inadvertently streamed to a media room in the Washington, DC, federal courthouse. CNN reported last week that one juror believed she was being followed.

        Kelly denied a mistrial motion from all five defendants, saying that every member of the jury was questioned about the interactions and confirmed they could still judge the case fairly. Kelly also denied motions from the defendants to strike the jurors who said they had been confronted, adding that “none of the jurors expressed a concern that any of this would affect their jury service.”

        Kelly said that he instructed the jury to disregard those interactions, and that “when I read this instruction to the jury, I watched many of them nod as if to say, ‘Okay, let’s get on with the case.’” […]

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