The Challenge of Treating the Proud Boy Leaders as Terrorists

The omnibus sentencing memo for the Proud Boy Leaders — an 80-page document supplemented by another 15 pages for each — describes their crime this way:

The defendants organized and directed a force of nearly 200 to attack the heart of our democracy.


None of this was mere happenstance or accident. In the months leading up to January 6, 2021, they had brought their army of violence to Portland, Kalamazoo, and Washington, D.C. And then they brought that army of violence to the Capitol to exert their political will. In doing so, these defendants attempted to silence millions of Americans who had placed their vote for a different candidate, to ignore the variety of legal and judicial mechanisms that lawfully scrutinized the electoral process leading up to and on January 6, and to shatter the democratic system of governance enshrined in our laws and in our Constitution.

For years, these defendants intentionally positioned themselves at the vanguard of political violence in this country. They brought that violence to the Capitol on January 6 in an effort to change the course of American history, and the sentences imposed by this Court should reflect the seriousness of their offenses.


The justice system’s response to January 6 will impact whether January 6 becomes an outlier or a watershed moment. “By nearly every measure, political violence is seen as more acceptable today than it was five years ago.” Adrienne LaFrance, The New Anarchy: America faces a type of extremist violence it does not know how to stop, THE ATLANTIC, Mar. 6, 2023 (citing a 2022 UC Davis poll31 that found one in five Americans believes political violence would be “at least sometimes” justified, and one in 10 believes it would be justified if it meant the return of President Trump). Left unchecked, this impulse threatens our democracy.

The defendants in this case sought to capitalize on this undercurrent in our society to change the result of a presidential election. They called for using force, intimidation, and violence to get political leaders to stop the certification of the election. They recruited others to this mission. They organized and participated in encrypted messaging groups and meetings to further their plans. Such conduct in leading and instigating an attack like January 6 demands deterrence. It is critical that this Court impose significant sentences of incarceration on all the defendants in this case to convey to those who would mobilize such political violence in the future that their actions will have consequences.

That language is a succinct statement of the terrorism committed by the Proud Boys.

But the document as a whole is a testament to how the asymmetrical treatment of terrorism in the United States makes it much harder to hold men like Enrique Tarrio and Joe Biggs accountable for attacking the Capitol that it would be if they were Islamic terrorists, rather than right wing Trump supporters.

The reason why the government had to dedicate 80 pages to justify sentences of 30 years for the core leaders of the January 6 attack is because it requires massaging the sentencing guidelines to treat white (or Afro-Cuban, as Tarrio identifies as) person terrorism like the US has long treated Islamic terrorism.

Here’s what DOJ had to in order to justify calling for these sentences:

  • Ask for consecutive sentences, effectively stacking some sentences on others
  • Adopt the treason sentencing guideline for sedition (which doesn’t otherwise have one), even while the maximum sentence for sedition is just 20 years
  • Ask that Judge Tim Kelly use the conspiracy convictions to apply the conduct of each defendant against the other, to apply the assault and property damage done by Pezzola against the others and the sedition conviction against Pezzola
  • Use enhancements for property destruction, substantial interference in the vote certification, and extensive planning on the obstruction charges
  • Use leadership or management enhancements for everyone but Pezzola
  • Ask for additional departures from the guidelines for “conduct [that] resulted in a significant disruption of a governmental function” and an “intent to frighten, intimidate, and coerce” federal lawmakers
  • Dismiss challenges (led by Nordean attorney Nick Smith over two years) to the treatment of the vote certification as an official proceeding that can be obstructed
  • Ask for a terrorism enhancement for the destruction of property (tied to the window Pezzola broke and some bicycle racks)
  • Ask for terrorism enhancement based on the clear political intent of all these crimes, including sedition, which is explicitly political
  • Add enhancements for Biggs, Tarrio, and Rehl for obstructing the investigation or trial (which is why Nordean’s proposed sentence is lower than the other guys’)
  • Describe the Oath Keeper as late-comers to sedition, by comparison
  • Laugh at any claim these men accepted responsibility for their crimes

The sentences make sense — particularly when you compare the damage these terrorists did against the aspirational Islamic terrorists who have been sentenced to even longer sentences. But in the scope of the sentencing guidelines as they exist, it all comes off as funny math.

Update: I probably should have explained in the post why this happens. Because domestic terrorism is not a crime unto itself, but instead an enhancement (which is the way it is being used with the destruction of property here), it is not finally used as a label until sentencing. Prosecutors have, in fact, been calling the Oath Keepers and Proud Boys terrorists throughout their prosecution in detention memos (relying on the same destruction of property). I addressed this in this post and this one.

Update: Here’s a post I wrote in 2015 about this asymmetry.

Note: The image accompanying this post is a challenge coin for January 6 introduced as an exhibit in Christoper Worrel (who has skipped bail as he awaits sentencing). The Proud Boys literally made the attack on the Capitol into a coin of their terrorist group. Update: Added the image to the body of the post, too, bc I confused people by referencing it w/o including it. 

55 replies
  1. Ruthie2the says:

    Islamic terrorism is intended to provoke government action, but indirectly, because any response is mediated through the intensity of the public reaction. It’s brought about significant changes since 9/11, helped by innate fear of the Other and overreaction to it.

    The actions of the Proud Boys leading to J6, on the other hand, were intended to overthrow the government. The threat they pose is more direct, more immediate, and IMO more dangerous than that of Islamists. Not only that, but because they’re not perceived as Other, we tend to under-react once the immediate threat is over. It’s a lot more pernicious.

    • BRUCE F COLE says:

      Exactly. The collapse of the Twin Towers, for example, was less the target than the mechanism Al Qaida used to get what they wanted, i.e., their real target: Western democracies stooping to their level of depravity — to which Bush/Cheney/Blair happily obliged.

      The attempted Trump caliphate can even be seen as a logical extention of that Devolution of America that they were hoping for, with the J6 terrorists as their actual accomplices.

    • SteveBev says:

      The challenge coin was made by Daryl Lyon’s Scott “Milkshake” and was in possession of Christopher Worrell, and was an exhibit in Worrells trial.
      Scott and Worrell are Florida based Proudboys.

      Scott received a 5 year sentence for his participation in the Jan6 events
      The government sentencing memorandum is here

      Worrell had a trial before Judge Lamberth, who had previously dealt with Scott

      Worrell’s trial took 10 days, with the verdict delivered by Lamberth on May 12.

      Worrell had pleaded not guilty to all the original charges. He faced 19 counts.

      Lamberth found Worrell guilty of seven counts:

      Obstruction of an official proceeding.
      Entering or remaining in a restricted building or grounds with a deadly or dangerous weapon.
      Disorderly or disruptive conduct in a restricted building or grounds with a deadly or dangerous weapon.
      Engaging in physical violence in a restricted building or grounds with a deadly or dangerous weapon.
      Act of physical violence in the U.S. Capitol grounds or buildings.
      Civil disorder.
      Assaulting, resisting or impeding certain officers using a dangerous weapon.”
      Sentence was due to take place today.
      Worrell was subject to house arrest having been released from custody after contempt proceedings in 2021 against the jail authorities in respect of failures of medical care regarding treatment for his cancer condition.
      Worrell has gone missing from his home.
      “ the Department of Justice on Sunday asked U.S. District Judge Royce Lamberth to sentence Worrell to 14 years years in prison; three years of supervised release; $2,000 in restitution; a fine of up to $181,000; and $610 in mandatory special assessments, which are imposed on defendants convicted of federal crimes.”

      The government sentencing memorandum is here

      One feature of the sentence memorandum is the extensive evidence of Worrell’s lack of remorse and glorifying the event of Jan6 and his role within it
      (See below)
      But on the day Worrell and Scott were instrumental in enabling other Proudboys and specifically Nordean and Biggs to breach the defences of Capitol.

      “ group then moved a few yards north, in front of a smaller group of USCP officers guarding the northwest stairs of the Capitol. This area is depicted in Image 4 below, in which, from left to right, “Leo Riddler,” Worrell, Scott, “J-Bird,” and “El Greco,” are Image 2
      Worrell took up position behind Scott, who squared up directly in front of the officers.
      Worrell’s zone-mates and Proud Boys leaders like Nordean and Biggs also positioned themselves behind Scott. At about 1:48 p.m., Scott suddenly pushed the two officers backward and upstairs. The police line there collapsed, and the crowd surged up the stairs and ultimately was the
      first group to enter the U.S. Capitol building. Immediately after Scott’s assault broke the police line, Scott and Worrell celebrated with each other, with Scott donning a cowboy hat and yelling “Proud of your fucking boy!” to Worrell. “

      The extensive glorification and spreading of Jan6 disinformation is set out over 4 pages of the memorandum pp38-41 which includes amongst other things raising ~$200,000 for himself as an innocent “political prisoner”

  2. Frank Probst says:

    Considering the consequences, it doesn’t seem unreasonable to me to require the government to come up with 15 pages to justify a terrorism enhancement. That seems to me like it should be the norm, not the exception to the rule.

  3. Fiendish Thingy says:

    Sorry to go off topic, but Mueller She Wrote just tweeted that footage has been found of Ken Chesebro and Alex Jones together on 1/5 & 1/6.

    Sounds like a BFD to me.

    Back on topic: I hope once the PB’s are sentenced, Biden will use his powers to designate them as a terrorist organization (as Canada has done) and seize their assets.

  4. bmaz says:

    I’d be VERY careful in the clamor over domestic terrorism. It gives the government, even state and local law enforcement, powers you may well live to regret. These are criminals, and it has been proved repeatedly that the criminal justice system can deal with them as such.

    • Ruthie2the says:

      I agree. Is it sedition, or terrorism? They seem really different crimes to me, not analogous, even if they do both provoke fear.

          • matt fischer says:

            Just calling it how I see it.

            To what extent the government impinges on our constitutional rights when the label is invoked is another question.

          • SteveBev says:

            I am with bmaz on this.

            There are very good reasons for dealing with political violence with the ordinary tools of the criminal law so far as possible, recognising that ordinary principles of eg sentencing law are broad enough in most circumstances to capture the aggravating elements of culpability that politically motivated crimes display – callous indifference towards ideological ‘enemies’ or bystanders, commitment to unlawful methods to obtain unjustified purposes affecting the public at large, lack of remorse through glorifying or justifying the acts, the enhanced need for deterrence of the criminal and others who might be influenced.

            Special laws might be necessary to deal with organisations or individuals more properly recognised as a terrorist threat, but a democratic society should always adopt the least intrusive measures to proportionately respond to such threats, and avoid describing/defining them in such terms that are so capacious that all sorts of activities unnecessarily fall within their scope.

            The U.K. has a long history of over broadly defining terrorism, in ways that make supposedly special laws unduly impinge on activities that ordinary law covers.

            Here are a couple of discussions which illustrate the issue which have arisen


            And The Crown Prosecution Manual re Terrorism – the breadth of the offences is something which would shock an American audience

            • SteveBev says:

              Again thanks to mods, and apologies that the post contained something which triggered your attention. Sorry for the trouble

            • Ginevra diBenci says:

              We overreacted after 9/11, using the attacks that day to justify a war on an abstract noun that “the nation” rallied behind when it meant attacking brown people in the Middle East who had not, come to find out, attacked us in the first place.

              Just because a terrorism enhancement exists does not mean it should, or that directing it at these white nationalists and MAGA fanatics somehow balances out our original sin in enacting it. It is the certainty, more than the severity, of punishment that deters others from committing the same crime. Locking up Biggs and Nordean for a term of 33 years makes them martyrs, not examples.

              We don’t need more rightwing martyrs.

              • matt fischer says:

                Terrorism — and laws used to prosecute terrorists in the US — long predate disgraceful actions taken in the guise of the so-called Global War on Terrorism.

                It is fitting that Jack Smith has charged Donald Trump under the KKK Act of 1871.

    • Tech Support says:

      DOJ seems to recognize the sentencing disparity that Marcy is referencing and they are doing a lot of work to ensure that the outcomes for the PBs are comparable to the outcomes for foreign terrorism convictions.

      To the extent that DOJ fails to get what they want, you would HOPE that would set a precedent that would provide relief for family members and dupes who get caught up in terrorism investigations (people who are the equivalent of Trump’s maintenance guy), but it sounds like the problem is in the laws themselves and not strictly a function of racial/religious sentencing bias.

    • emptywheel says:

      Thanks bmaz.

      Welcome to my website where I have been writing about these issues for 15 years. Look around!!! You might find interesting things!

      • Lisboeta says:

        The overwhelming majority of any minority group in the US are peaceable and law-abiding. That hasn’t prevented them from being targetted (and attacked or killed), merely for being “other” — often by whites, and with the complicity of the police.

        If those “others” had called for violence in reaction to such unwarranted maltreatment, they would be roundly criticised. Yet US poll results from 2022 indicated that a significant percentage of respondents believed that violent protest against the government is justified. In other words, they endorsed the Jan 6 insurrection.

        I can understand bmaz’s caution. But terrorist organisations have to be placed beyond the pale based on their actions, not the pallor of their skin.

        • emptywheel says:

          One way or another the asymmetry is anomalous. FBI is still rounding up Muslim kids when they turn 18 to make their numbers on terrorism busts.

    • hippiebullsht says:

      Honestly when it comes to TFG and Pb s the US media are their sponsors, allies and teachers. Yes, the Feds going after what I consider our current broadcast, withering print and social media terrorists chasing profits would just be inverting the terror food web.
      Yes Fox n fux like X need to go all the the fuck away from profiting in this country, just like MagaTs and their cult head. But slow and steady so the dupes can see the infected tissues being cut away and examined for the domestic diseased abscess that’s been festering since the domestic terror incident known as the ‘Boston Tea Party’.

    • LordAvebury says:

      Clarification: It only appears on the Emptywheel front page – not on the posting. Since I read Emptywheel via the RSS feed, I almost never see the home page….

    • BRUCE F COLE says:

      It’s at at the head of the story intro, currently on top of the front page story list.

      The guillotine is my favorite part of the coin, and the flames are a nice, cognitively dissonant touch, referring, I assume, to the torching of DC in 1812 by the Brits.

      The noose is ok, but it looked better in some of the stills that were shot during the riot, with it framed as encircling the Statue of Freedom at the top of the Capitol dome.~

      I don’t get what the black blobs are in the foreground.

      • Roger Mexico says:

        As I said on the other thread it wouldn’t be cheap – it’s 4 color and I assume the same on the other side. I would guess around $3 on a run of 1000 or $5 on a run of 100 or so.

      • Shadowalker says:

        “ I don’t get what the black blobs are in the foreground. ”

        The one on the right could be a bear (bear spray?). Left most one, every time I look at it I see a gold crown. Also a car to the left of the ‘bear’ which could be reference to Pence being forced to the dock area next to his car, hard to say since reflections of the plastic covering are adding highlights.

      • hippiebullsht says:

        nah the black blobs are just green w bush’s cuz that shitfucker stole the election in 2000 and his legacy was strongly felt at the bromoerotic january 69 wkender bender.
        By late November 2020 their was graffiti in my Illinois city saying ‘Trump won’ and showed a capitol building going up in flames with a US flag on top… more lo-fi than this coin but it was ‘terroristic’-ish, and shows that MAGAfux were already stewing it up. I did my anti-fash duty and covered it with my ‘L0L’ and ‘DIRT DONT HURT’ stencils til one of the city empolyees (who probably put up the flaming cap) came and covered it all.
        The guillotine is aspirational bullshit-they aspirated it with help from social media-and off with their own free walking heads!*!*!

        • Shadowalker says:

          Well that explains it. Should have removed them since they really don’t add anything to the piece, plus it gives more room for other things like gang symbols.

  5. jdalessandro says:

    Has anyone else thought of this, because if so, I apologize for the repetition: it is rumored that a Fani Willis-style state prosecution of Trump and friends is forthcoming from the State Att Gen. in Arizona. If so, what are the odds that a certain criminal defense attorney in that state is retained by one of them?
    Hell, I know who I’d want.

    • bmaz says:

      I have already been in contact with the AG here, Kris Mayes, and the DAG too. If they pull that bullshit, instead of electing them, I will actively help to get rid of them. And, note, that the person involved here is the AG for the entire state, not a local county attorney.

      That aside, I will work for enough money. But this group is not known for paying.

      • jdalessandro says:

        My sister was a public defender in northern NJ; I totally get it.

        The pressure on your AG to indict somebody for something must be substantial.

          • timbozone says:

            “The page isn’t redirecting properly” when I try to resolve link on my browser. Anyone else having similar problem?

            [FYI – it’s paywalled, part of the USA Today-Gannett family of news outlets. Do search for it elsewhere online. /~Rayne]

      • bmaz says:

        Lol, Ken said so. But it is not like someone here has been saying this since the day Willis took office.

        Ken is gospel, but the person actually here is sidelined.

        • Tech Support says:

          I have learned to be a big fan of your commentary (after taking a few to the chin) but you embrace brevity in a way that Ken does not, and I like a long-winded digression once in a while.

      • timbozone says:

        Perhaps what Willis has done here is to provide a roadmap to other investigators with the organization of the overt acts in chronological order first and foremost. I note that ordering also helps all counselors involved get a grip on the overall arc of the charged RICO conspiracy.

        Now, as to whether or not their should be RICO like laws, that’s an issue that I’m still on the fence about. These are certainly worrisome laws that can have worrisome consequence when there are marginal judicial rulings that allow too much power to prosecutors.

        • bmaz says:

          Perhaps what Willis has done is recklessly and self promotionally injected the exact last bit of garbage Trump needs to argue political persecution. And he may not even be wrong at this point.

  6. dadidoc1 says:

    The noose pictured on the challenge coin makes me think that the Proud Boys might be responsible for constructing the gallows on January 6th.

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