WASHINGTON – A judge challenged U.S. prosecutors’ allegations that key leaders of the Proud Boys planned in advance to threaten Congress and battle police in the Jan. 6 Capitol riot, saying Tuesday that he had not yet seen a clear “invocation to violence” in their communications.
Whether the rioting was spontaneous or egged on by extremist groups planning on violence for their own reasons has been a central question as the government has charged more than 40 members or associates of the Proud Boys and the Oath Keepers, both far-right groups, among 360 arrested in the Capitol attack.
At a hearing, U.S. District Judge Timothy Kelly of Washington said despite evidence that the Proud Boys leaders planned, fundraised and organized scores of members to converge on the Capitol with radios and protective gear in expectation of violence, it is less clear whether charged conspirators plotted beforehand to thwart police and disrupt Congress, or whether individual members opportunistically drove the chaos.
“I’m not saying that at a future hypothetical trial, the government is not going to be able to stitch together . . . and lay a lot of what happened at the defendants’ feet,” Kelly said. “Maybe the government will. But . . . when we get down to the day in question, there isn’t anything that is very clearly an invocation to violence, at least as I see it.”
After a two-hour hearing, Kelly said he would decide Friday whether to jail two men as public threats pending trial: alleged Proud Boys “thought leaders” and organizers Ethan Nordean, 30, of Seattle, and Joseph Randall Biggs, 37, of Ormond Beach, Fla.
Kelly probed gaps in prosecutors’ evidence the same day that 140 former U.S. homeland security and defense secretaries, lawmakers and ambassadors of both Republican and Democratic parties implored Congress to create a 9/11-style commission to probe the Jan. 6 attack. The breach led to assaults on nearly 140 police and delayed Congress’s confirmation of the 2020 election results.
“Given the gravity of January 6 as a national security matter – the violent disruption to the transition of power and the continuing threat of future attacks – a national commission examining the lead up to the January 6 assault, and the attendant security lapses, is not only appropriate, but a critical component of the national response,” officials wrote.
While Congress is deadlocked, prosecutors cast members of the Proud Boys, a far-right group with a history of violence, and the Oath Keepers – a network of groups founded in 2009 on the premise that the federal government is evolving toward dictatorship – as would-be revolutionaries drawn to then-President Donald Trump’s calls to “get wild” in Washington.
Prosecutors asked to revoke the pretrial release of Nordean on March 3, alleging he endorsed violence in online videos, criticized police and mobilized a “1776”-style revolt on encrypted message groups.
They also sought to detain Biggs, who allegedly forcibly entered the Capitol twice and reached the Senate chamber where then-Vice President Mike Pence had been presiding.
Nordean and Biggs, an Army veteran, are charged in an indictment with conspiring to disrupt Congress’s joint session and impede police with two other Proud Boys leaders, Charles Donohoe, 33, of Winston-Salem, N.C., and Zach Rehl, 35, of Philadelphia, both former Marine corporals. The four allegedly led more than 60 others who communicated in encrypted chats about “storming the Capitol” and hiding their tracks to avoid criminal gang charges before and after they converged at the U.S. Capitol, joining a pro-Trump mob to topple barricades and rush police.
Investigators say Nordean and Biggs led the group on a march around the Capitol, before several members allegedly led some of the earliest and most aggressive efforts to charge police lines and smash through windows and doors. Nordean and Biggs also allegedly knocked over a police barrier, sending a signal to their followers and uncorking the violence, Assistant U.S. Attorney Jason McCullough alleged, even though they were unarmed and did not assault anyone themselves.
“The government views this defendant, Ethan Nordean, as having an unwavering commitment to denying the lawful functions of the government,” McCullough argued.
McCullough said Nordean was willing to sacrifice his marriage, family ties and Seattle roots in the belief that he is a “patriot.”
“Ethan Nordean planned, organized, fundraised and led others onto Capitol grounds on January 6 . . . to obstruct the certification that was taking place that day, and in fact he and his co-conspirators were successful in that effort,” McCullough said.
He added that, short of jail, “there can be no adequate safeguard against [either’s] ability to mobilize his men in support of a new unlawful objective.”
A three-judge appeals court panel raised the bar last month for detaining nonviolent Capitol defendants, requiring judges to specify why those detained posed a risk of dangerousness or if they “aided, conspired with, planned, or coordinated such actions.”
Biggs’s attorney, John Daniel Hull, asserted that Biggs has complied with all conditions since the government declined to object to his home release on Jan. 20, that no new information justifying his jailing has emerged, and that FBI agents in Florida in July asked him to share what he was learning through his efforts to oppose far-left antifa activists.
Nordean’s defense argued that belying any plan to storm the Capitol, he had arranged for a musician to play at the Airbnb where he was staying in Washington on the afternoon of Jan. 6.
Nordean’s attorney, David Smith, and Hull argued that the Proud Boys were only planning to protect Trump supporters after street fights erupted during demonstrations in Washington and other cities last year, not to criminally invade the Capitol.
“Unless it is claimed that the defendants had a plan to topple the world’s most powerful government in approximately one hour or less (without any weapons), immediately leave the scene without any law enforcement concern, and then throw a carefree music party blocks from the scene of the world-historical crime, both of these contentions cannot be true,” Smith wrote.
On encrypted Telegram message groups set up for Jan. 6 in Washington titled “Boots on the Ground” and “New MOSD” – which prosecutors said they believed stands for “ministry of self-defense” – some Proud Boys participants expressed surprise at the breach and resulting evacuation of Congress, Smith said.
“Ummm I don’t think the plan was to attack, damage, and attempt to control government building,” one of the comments said, according to court filings from Smith.
This “was NOT what I expected to happen today . . All from us showing up and starting some chants and getting the normies all riled up,” another wrote, according to Smith.
Prosecutors dismissed those claims, saying the organized presence of the Proud Boys and their plans to confront police led directly to the crisis.
That Nordean considered a live music event at 4 p.m. “does not refute the existence of a criminal conspiracy to disrupt the proceedings at the Capitol” and preparations for “violent confrontation.”
Kelly expressed greater receptiveness to that argument by prosecutors.
“The question is whether prior to January 6, there was a plan in place to attack the Capitol, and whether these men were in the leadership of the plan. Your strongest argument is the leadership argument. What exactly were they leading, and how connected was that to violence, looking forward, I think is more of the question,” the judge said.
Prosecutors said that for days beforehand, Biggs and Proud Boys Chairman Henry “Enrique” Tarrio mobilized a large turnout of Proud Boys dressed “incognito” to blend into the crowd, and Nordean went online to obtain tactical vests, armored plates, bear spray and donations for gear and radios.
On Jan. 4 and 5, the four co-defendants, Tarrio and a handful of others coordinated on the MOSD group, explicitly instructing the wider group on the ground in Washington to disavow “planning of any sorts,” and not be “typing plans to commit felonies into your phone,” according to court filings.
The writer of the last message, who prosecutors identified only as unindicted co-conspirator 1, or UCC-1, allegedly added the morning of Jan. 6, “I want to see thousands of normies burn that city to ash today,” and, “The state is the enemy of the people.”
Two others allegedly replied, “It’s going to happen. These normiecons have no adrenaline control. . . . They are like a pack of wild dogs,” referring to ordinary Trump supporters.
Prosecutors said UCC-1 and one of the others in the chat were not at the Capitol but indicated they were monitoring it remotely using live streams and other methods. As members surged forward, UCC-1 allegedly wrote, “Storming the capital building right now!!” and “Push inside,” which the government claimed reflected that leaders understood the plan to include “storming the Capitol grounds.”
Prosecutors said video of the group outside the Capitol before the assault showed members expressing similar intent. One screamed, “Let’s take the . . . Capitol,” to which others replied, “Idiot” and “Don’t say it, do it,” according to court documents.
Prosecutors alleged Proud Boys members led a mob that overwhelmed police barriers to reach the Capitol’s West Front shortly after 1 p.m. anddeployed bear-spray gel at a “weak point” in police lines defending a stairway on the northern end of the West Terrace. Another member used a stolen police riot shield to smash through one of the first Capitol windows at 2:13 p.m., according to prosecutors, allowing Biggs and others to rush into the building near Pence as he was being led to safety and celebrating afterward.
Separately Tuesday, judges weighed whether to release several defendants accused of assaulting police, with Chief U.S. District Judge Beryl Howell criticizing the appeals court ruling as unworkable.
Defense attorneys for Kyle Fitzsimons and Ronald Sandlin emphasized that they had little criminal history and no ties to organized violent groups. But prosecutors said they were dangerous radicals who came to the District of Columbia ready for violence.
“The prosecutor’s job . . . is to paint me as a domestic Osama bin Laden,” Sandlin told the court. “I just want this ugly chapter of my life to be over as quickly as possible.”