Ratifying Sedition: The Proud Boys 404(b) Evidence

As I noted yesterday, the government provided its 404(b) notice in Trump’s January 6 case. 404(b) notices alert the defendant to evidence that may or may not be intrinsic to the case but in any case shows the defendant’s criminal propensity.

In addition to showing how the Trump campaign tried to start a riot at the TCF Center in Detroit, DOJ also wants to show that Trump’s celebration of the Proud Boys bookends his own assault on democracy.

As the filing describes, Trump called out the militia at the first debate, and then — almost three years later — complained that convicted seditionist Enrique Tarrio faces a long sentence.

The Government plans to introduce evidence from the period in advance of the charged conspiracies that demonstrates the defendant’s encouragement of violence. For instance, in response to a question during the September 29, 2020, presidential debate asking him to denounce the extremist group the Proud Boys, the defendant instead spoke publicly to them and told them to “stand back and stand by.” Members of the group embraced the defendant’s words as an endorsement and printed merchandise with them as a rallying cry. As discussed below, after the Proud Boys and other extremist groups participated in obstructing the congressional certification on January 6, the defendant made clear that they were acting consistent with his intent and direction in doing so.


Of particular note are the specific January 6 offenders whom the defendant has supported— namely, individuals convicted of some of the most serious crimes charged in relation to January 6, such as seditious conspiracy and violent assaults on police officers. During a September 17, 2023, appearance on Meet the Press, for instance, the defendant said regarding Proud Boys leader Enrique Tarrio—who was convicted of seditious conspiracy—“I want to tell you, he and other people have been treated horribly.” The defendant then criticized the kinds of lengthy sentences received only by defendants who, like Tarrio, committed the most serious crimes on January 6.

DOJ’s plan to show this is not surprising. After all, DOJ kicked off the Proud Boy sedition trial with Trump’s shout out to the Proud Boys.

But the significance, given the way DOJ has structured its conspiracy prosecutions from the start, is far more than damning evidence.

That’s because one of the conspiracy charges against Trump, 18 USC 1512(k), is one of the charges of which the Proud Boy leaders were convicted.

Aside from that public shout-out, which DOJ describes as, Trump speaking “publicly to them,” Donald Trump is not known to have communicated directly with any of them. But as I illustrated in January, Ethan Nordean, Joe Biggs, and Enrique Tarrio all communicated with Alex Jones and Roger Stone (and Owen Shroyer — who has two more days left in his sentence in Oakdale Correctional), even during the attack. Both of them, Jones and Stone — who have not been charged — communicated directly with Trump (and Mark Meadows). Stone’s actions leading up to January 6 were central to the guilty obstruction verdicts in Proud Boy Dan “Milkshake” Scott’s plea and Chris Worrell’s bench trial.

There may be more than that.

At the Proud Boy Leaders trial, for example, prosecutors introduced a series of Telegram chats from the day of, and immediately following, Trump’s shout-out. The men were giddy at Trump’s recognition.

In the wake of Trump’s debate recognition, there was talk of Trump inviting Proud Boys to the White House (Tarrio eventually did visit the White House, in December, as part of a Latinos for Trump event).

There was talk of mobbing election offices.

And, on November 8, Tarrio warned now-cooperating witness Jeremy Bertino not to wear colors because the campaign “asked us” not to do so.

As the campaign was ginning up mobs in swing states, Tarrio at least claimed to have some contact directly with the campaign. Stone is not the only candidate to be Tarrio’s tie to the campaign; Kellye SoRelle, who knew Tarrio from Latinos for Trump, was involved in the mob scene in Michigan.

A month ago, lead Proud Boys prosecutor Erik Kenerson dropped off one of the key pending Proud Boy prosecutions. There are many things that could explain that, but when other prosecutors — like Mary Dohrmann — moved under Jack Smith, that’s the kind of public activity that marked the move.

Several things have made clear in recent days that DOJ doesn’t consider the list of six uncharged co-conspirators in Trump’s January 6 indictment to be exclusive.

In their description of the TCF riot, for example, DOJ described the campaign employee who encouraged rioting (possibly Mike Roman) as “an agent (and unindicted co-conspirator).” Whoever it is would be a seventh co-conspirator.

More curiously, when Tanya Chutkan corrected Trump’s false representation of the indictment in her ruling that he did not have absolute immunity, she described that, “Defendant, along with at least six co-conspirators, id. ¶8, undertook efforts ‘to impair, obstruct, and defeat [that process] through dishonesty, fraud, and deceit,’ id. ¶ 10.” That comment stuck with me, as everyone else who has commented on the indictment has treated the six co-conspirators as an exclusive list. But sure enough, that paragraph she cites describes that the six co-conspirators laid out in the indictment — Rudy Giuliani, John Eastman, Sidney Powell, Jeffrey Clark, Kenneth Chesebro, and probably Boris Epshteyn — were only “among” those with whom Trump conspired.

The Defendant enlisted co-conspirators to assist him in his criminal efforts to overturn the legitimate results of the 2020 presidential election and retain power. Among these were:

If DOJ were ever to charge someone and make it a related case, it would come before Chutkan. That’s just one way that Chutkan might know of specific additional alleged co-conspirators that we wouldn’t yet know.

Conspiracy law doesn’t require co-conspirators to get together in a room to plot together. They need only agree on the objective and take steps to achieve it. If they have networked communications between them, all the better.

At the Proud Boys trial, prosecutors made Trump’s role in their conspiracy clear. Now, leading up to the former President’s own trial, DOJ has said they will present communications that amount to an agreement in September 2020 and ratification of the Proud Boy attack on the country in September 2023.

This is not just damning evidence of fondness for the right wing militia. It’s evidence that Trump pursued the same effort to obstruct the vote certification as the Proud Boys.

45 replies
        • TimothyB says:

          Close. Charles Simonyi, then a MSFT employee, invented Excel (in imitation of Lotus.) That was the second MSFT spreadsheet, after MultiPlan (invented in imitation of VisiCalc). Simonyi left MSFT long after all this, founded a different company, which was later acquired by MSFT, but it was not a spreadsheet company.

        • ChrisH says:

          Lotus was bought out by IBM. Amusingly as IBM were a major client of my then-employer we were ‘encouraged’ to use the Lotus suite of apps. Unfortunately all of our other clients/suppliers/etc used MSOffice so that ended well…

          Mods: I’ve posted before but have had a machine wipe & cannot remember what I previously posted as. I think that I’ve used the correct name, apologies if not!

          [Moderator’s note: You began posting as “ChrisH” and have three comments under that username including this one. But last November you switched to “Hairy Chris” publishing 8 comments under that username. “Hairy Chris” complies with the new site standard — you should make a note of the name and switch back with your next comment. Thanks. /~Rayne]

        • goatrodeo says:

          Hold on there. I am recalling VisiCalc as commercially the first of these dark arts? I recently had this flashback driving past Paradise Valley strip mall from which I received my certification back in 1982. The storefront, was it CompuShare, is long gone. I had such a hard time retraining myself to treat the carriage return key as the enter key! Forehead in palm, still to this day. VisiCalc, Lotus 123, and finally (?) Excel, and the world has never been the same. The 80’s aren’t dead, indeed they aren’t even over, to paraphrase the sage.

      • RipNoLonger says:

        Not to be pedantic, but Microsoft’s Excel is just another example of what were the first spreadsheets such as VisiCalc in the early 1980s. I’m guessing EmptyWheel could have used another modern alternative just as well.

      • Eschscholzia says:

        That is a pretty low bar!.

        Friends don’t let friends do statistics in Excel for a reason. Even the purported least squares regression line can be wrong.

        The “leapyear bug” noted by Troutwaxer below is just part of some really stupid non-ISO non-POSIX handling of dates & times with shifting epochs, where files created with old versions of Excel have different date values when opened by current versions (same for Access). [Also, I have some Excel 2.0 files that no recent version of Excel can open. .xls is not an archival file format.]

        But, back to the top comment: Emptywheel uses tables to great advantage in laying out connections among documents and events, whatever tool she uses.

        • Matt Foley says:

          “But, back to the top comment: Emptywheel uses tables to great advantage in laying out connections among documents and events, whatever tool she uses.”

          Yup, that was the whole point of my comment; I couldn’t care less which tool was used.

  1. soundgood2 says:

    There’s a wealth of information in these filing for those who take the trouble to read them. It used to be easier to find links via my Twitter follows. It’s a bit harder now, and Threads is catching up, but that is what I miss most about Twitter and has me checking back with it every so often.

    Thanks for you great work and for posting links to the underlying legal docs.

  2. Eejittery says:

    Candidates in that debate were provided the questions beforehand (correct?), so Trump’s “stand back and stand by” was clearly premeditated and practiced. As that language doesn’t even sound like his usual tripe, there’s probably more than a few ratfuckers involved whose stories from debate prep would be of interest. Wish I’d been a fly on that wall.

      • FrictionBlistered says:

        Botched delivery could have resulted from overexcitement of an undisciplined mind, misfiring from anticipation of delivering what is turning out to be his most important statement from the debate.

      • wa_rickf says:

        The night of the debate on September 29, 2020 when Chris Wallace asked Donald Trump: “Are you willing, tonight, to condemn white supremacists and militia groups and to say that they need to stand down…”

        Mr. Wallace told Trump the correct phrase, “stand down,” but the incompetent Donald Trump screwed the pooch on delivery: “Proud Boys, stand back and stand by! But I’ll tell you what, somebody’s got to do something about antifa [sic] and the left.”

        “Stand back?!?” My first reaction was: “Seriously?!?” Can’t that idiot orange clown do ANYTHING right? Sheesh!”

  3. The Old Redneck says:

    The Trump campaign must have learned something about using cutouts from talking to Russians in 2015 and 2016. Roger Stone, no surprise, seems to be the common thread running through all of it.

    • wa_rickf says:

      The Trump campaign used Signal app when communicating. Signal gives encrypted messages, as well as voice and video calls. Signal also makes messages disappear.

      Use disappearing messages to keep your message history tidy when planing your 2020 coup/insurrection!

    • Ithaqua0 says:

      The Godfather. “Oh Paulie… won’t see him no more.”

      Maybe someday Trump will disappear from our various newsfeeds, at least the non-Fox ones…

  4. boatgeek says:

    Question about the unindicted co-conspirators. How much more time do we have on the statute of limitations on these folks? And related, can a grand jury issue a sealed indictment within the statute of limitations that is then put in a drawer until a convenient time that may or may not be within the SOL? In this case, a convenient time would be after the Trump trial concludes since that is obviously Smith’s priority.

    • bmaz says:

      The federal statute of limitations for conspiracy is the general statute of five years. If the conspiracy is ongoing, it would be from the last overt act in furtherance thereof. As to your second question, yes, but that very rarely occurs. People are always concerned about sealed indictments, but they are very rare except short term ones to allow apprehension of the subject.

      • boatgeek says:

        Thanks Bmaz and Marcy for the info. It seems like the fifth year of the SOL is moot for co-conspirators. If Biden is re-elected, then Smith files whatever charges he wants to file. If Trump wins, then pardons abound in late January.

    • brucefan says:

      Am I correct that Trump has 30 days to appeal the immunity denial and therewith seek a stay of the trial proceeding?

      IOW, if Trump had filed immediately and obtained a stay very quickly, he might have prevented Jack Smith from filing the 404(b) notice?

      I bet things are unusually busy right now (which is saying something) at Jack Smith’s offices.

    • emptywheel says:

      Two more years. Obviously, if Trump wins in 2024, there’s just 395 days.

      I think you shouldn’t worry abt SOLs. I imagine Jack Smith understands that if Trump is convicted and/or he loses or is DQed after conviction, then he can roll out a slew of indictments. But Smith also has 9 months in which to tell this story before the election.

      • bloopie2 says:

        I’m curious on the timing thing, i.e., what happens if Trump is elected and takes control of DOJ. Your 11/18/22 post, titled “Merrick Garland names war crimes prosecutor Jack Smith to oversee Trump investigations”, seemed to say things might continue. (Note, I really don’t understand what is the significance of appointing a Special Counsel here.) Thanks.

  5. WilliamOckham says:

    I never treated that list of 6 unindicted coconspirators as an exclusive list. There are literally hundreds of self-proclaimed coconspirators. The easiest list to start with is the intersection of two sets. The first set is any member of the House who signed Mike Johnson’s amicus brief for Trump’s intervention the Texas v Pennsylvania lawsuit. That’s an overt act as part of a joint enterprise to accomplish an illegal end. The second set is any member of the House who voted against certifying Biden’s electors. That was an overt act wittingly taken after the rioters and seditionists had joined the conspiracy. And the Speech and Debate clause isn’t a get out of jail free card in the same way that logic doesn’t work for bribery.

    • timbozone says:

      At minimum, and as we have seen, the Speech and Debate clause creates a significant roadblock to holding members of Congress accountable when they can tie their conduct to the conduct of official Congressional business. And, like it or not, members of Congress have the privilege to object at the appropriate time, under the rules of the Congress and by law, to the the electoral college count from individual states. Proving enough of a conspiracy to get a judge/the Supreme Court sign off and uphold a subpoena is always going to be tough for prosecutors when there is even a marginal claim to Speech and Debate immunity from questioning, and this instance of conspiracy by Twisserlings in the Congress is no exception. I hope that the OSC is able to get evidence to sustain indictments of Congressional members who actively took steps to bring the insurrectionists to the Capitol on January 6…but, afaik, we ain’t there yet.

      Anyone know if any member of Congress has yet testified in front of a Federal Grand Jury about any such conspiracy to obstruct the January 6, 2021 meeting of Congress? Pence testified this year finally. Gingrich was forced to testify at the beginning of this year too. But I don’t see any evidence (in a quick data search) that actual sitting members of Congress on that fateful day in 2021 have sat in the witness box before FGJs investigating this matter…

Comments are closed.