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Among the more than 990 federal criminal prosecutions arising from the Jan. 6 insurrection to date, the seditious conspiracy trial of five top members of the Proud Boys organization could well be the most important and informative of all. Accordingly, I am chronicling this historic trial, minute-by-minute, via this live-blog.
In a ten-count indictment, the government alleges that five Proud Boy defendants—then-chairman Enrique Tarrio, Ethan Nordean, Joseph Biggs, Zachary Rehl, and Dominic Pezzola—conspired to oppose the lawful transfer of presidential power by force. In a novel legal theory, prosecutors argue that these five defendants manipulated and enlisted other rioters—including both Proud Boys and non-Proud Boys—to act, in effect, as their “tools” to effectuate the conspiracy’s goal. In this manner, the defendants allegedly played crucial roles in toppling key barricades, penetrating key police lines, and breaching key Capitol building windows and doors, making the assault on the U.S. Capitol a reality.
The live-blog will run each day that the trial is in session with the most recent day at the top. You can read my past work on the Jan. 6 criminal prosecutions, including my coverage of the Oath Keepers trial, on Lawfare here.
Editor's note: Due to a death in the family, Lawfare Senior Editor Roger Parloff took a sudden leave late in the afternoon on April 3. He then missed five days of trial: April 4, 5, 6, 11, and 12 (days 50-54 of the trial). He has subsequently compiled summaries, based on transcripts, of what happened on each of those dates from the sources identified in each summary.
Day 62, April 25, 2023
Day 61, April 24, 2023
Day 60, April 21, 2023
Day 59, April 20, 2023
Day 58, April 19, 2023
Day 57, April 18, 2023
Day 56, April 17, 2023
Day 55, April 13, 2023
Day 54, April 12, 2023
The morning begins with Judge Kelly discussing issues that were raised in non-public emails sent to the court over night. They appear to relate to attempts by defendant Dominic Pezzola’s lawyers to prevent the government from asking certain questions of Pezzola if he chooses to take the witness stand.
To begin with, the judge instructs Pezzola’s two attorneys to file a single document on this subject.
It appears from the discussion that at some point and in some context—perhaps while in detention after his initial arrest—Pezzola said things about defendants Ethan Nordean and Joe Biggs that the government would want to bring up. The government doesn’t think Pezzola’s statements were true, but wants to use them to undermine Pezzola’s credibility by showing his willingness to lie.
Apparently attorney Metcalf gets very animated during this discussion and Judge Kelly tells him, “You don’t have to shout.” (Metcalf apologizes.) But Metcalf argues that the false statements the government wants to use, if permitted, will force him to raise a number of topics:
this calls into question a lot of different factors. It calls into question what was the surrounding circumstances. It calls into question what was going on with his attorney and what advice was being given. It calls into question the pressure that was put on him to essentially create and fabricate these lies. It calls into question him being in jail. It calls into question him not getting his medication during certain points and actually suffering from withdrawals. It calls into question various different components that, then, I'm going to have to dive into.
From the discussion it sounds like Pezzola made certain statements about Biggs’s interaction with rioter Ryan Samsel a few minutes before Samsel helped topple the barricade at the Peace Circle. Remember, Samsel put his arm around Biggs, they said a few words to each other around 12:50p.m. Then, a minute or two later. Samsel became the very first rioter to breach the unmanned barricade at the Peace Circuit (at 12:52pm). He and a second rioter (James Tate Grant) then strode up to the manned barricade and begin shaking it at 12:53pm, eventually toppling it.
Back in Oct. 7, 2021, the New York Times reported that Samsel, after his arrest in Pennsylvania in January 2021, had told the FBI that Biggs had demanded that Samsel confront the police line, insulting Samsel’s manhood, and flashing a gun.
From the colloquy here, it sounds like Pezzola must have supported that theory—which no one seems to believe today.
Biggs’s lawyer, Norm Pattis, for example, says this:
MR. PATTIS: Quickly ... with respect to the question of a gun and Biggs, I'd ask that the Court consider not permitting evidence of a gun. We've had several months of evidence, and I don't think there's been even a suggestion that the firearm was in anyone's possession. Now, this will be one of the last things the jury will hear, and they'll hear the man lied about it, but they'll nonetheless hear it, and it will be associated with my client in ways that will be hard for me to undo.
With this issue not completely resolved, the judge switches to discussing some materials the government wants to use to cross-examine defendant Zach Rehl. It wants to use images and videos of violence from prior rallies that Rehl posted on social media to recruit and encourage people to join the Proud Boys. It also evidently wants to use some texts Rehl sent his mother and brother. Judge Kelly thinks attorney Carmen Hernandez, for Rehl, has already opened the door for the government to do that. Specifically, he says Rehl opened the door when he testified, “We don’t want new guys coming in and thinking, because they’ve seen on YouTube some fight that’s happening that that’s ... what we were all about. it’s not.”
Hernandez argues that Rehl was not using the materials in question to recruit, but her conversation with the judge becomes heated. “Ms. Hernandez, when you turned away before and looked away from me, that’s very disrespectful and I’m not going to put up with it anymore.” Hernandez, in turn, protests that “you cut me off all the time. . . . I have an obligation under the Sixth Amendment ... to present to the Court what I believe to be my client’s defense ....”
During this discussion Hernandez also brings up claims that Rehl has been doxxed by an anti-fascist causing him to be fired from his job and to have a brick thrown through his front door while his wife was inside. Someone spray-painted Nazi on the brick front. She says that if the government brings up his animus toward Antifa, she will respond by getting into these matters. She also claims that the government has not been forthcoming in producing law enforcement records about attacks on Rehl.
Judge Kelly responds that she may be entitled to introduce such evidence but it doesn’t change the fact that Rehl has opened the door to the videos the government wants to use on cross. “So I guess I’m flabbergasted, Ms. Hernandez, that you would say, ‘Well, I don’t think any of this could be part of his cross-examination’ ....”
DOJ attorney Conor Mulroe now responds to some of the things being said. He says that he searched the FBI files in June 2022 and found nothing relating to “doxxing or bricks or anything like that.” He says Hernandez did provide the government with a civil lawsuit that references an alleged brick incident in November 2018, but that was two years before the Parler posts that the government wants to introduce.
Hernandez says an FBI agent told her they had information about the incident. The judge says the government should try to provide whatever information it has.
They break for ten minutes and then instruct the deputy clerk to bring in the jury after defendant Rehl has already taken the stand. That way the jury won’t see the U.S. Marshal following Rehl to the stand, possibly revealing that he’s in custody. (It’s almost moot, because Rehl has already told the jury he’s in custody.)
After the break Hernandez resumes her direct examination of defendant Zach Rehl.
Asked about cooperating Proud Boy Jeremy Bertino’s use of the term “tip of the spear,” Rehl says he “never even heard anybody say it before that. ... I personally never used that term.”
Rehl now testifies he was nowhere near Proud Boy Charles Donohoe when Donohoe threw water bottles at the police. He also said he’d never seen Donohoe use violence against the police before then.
Hernandez now shows him a photo Nick Quested took on Dec. 11, 2020, of Rehl, Tarrio and Pezzola walking together. Rehl says that at the time he didn’t know Pezzola, hadn’t spoken to him, and didn’t know his name. He’s never spoken to him on the phone and, to his knowledge, never spoken to him directly in a Telegram chat.
Rehl says he only learned that Pezzola had broken a window on Jan. 6 later that when he saw it referenced in Telegram. He testifies:
I thought it was extremely stupid to do and made us look bad and it was specifically what the MOSD was supposed to prevent from happening and, you know, he went off on -- I guess you could say he went off on his own and did his own thing and he made us all look bad . . . .
Rehl says he “absolutely” does not approve of any damaging of the Capitol. “It’s a historic building and I—no, absolutely not.”
Rehl says he was nowhere near Pezzola when he broke out the windows near the Senate Wing Door. He was “behind the [media] tower” at the time.
Rehl then testifies again that he drove to Washington on Jan. 5, 2021, with Isaiah Giddings, Brian Healion and Freedom Vy. On the way down, each of them bought a case of 30 beers—so four 30-packs. Much of that they consumed that night, Rehl testifies, but some was left over for the next day.
Hernandez now asks him about Dick Sweats. Rehl says he was a Philly Proud Boy that “some of our guys had issues with.” He says “we didn’t want him in our chapter anymore” so a new chapter was created, called Lehigh. Rehl says he remained friends with Sweats. But Rehl did not invite Sweats into MOSD; he thinks Bertino did and says he warned whoever did to “be careful with him.”
Hernandez also ask about a Proud Boy who used the handle President Leo Kuznetsov (with little turtles in his Telegram handle). Rehl says he was from Tennessee but had a relationship with the Philly Proud Boys. Rehl didn’t invite him into MOSD because “I wanted guys that I could actually supervise and he’s from Tennessee.”
Hernandez shows him an overhead video of a crowd scene where (I think) Pezzola is wresting away the riot shield from Officer Mark Ode. She elicits that although Rehl is fairly nearby in that crowd, he could not see what was going on. “I heard a commotion over here,” he says, but “I didn’t see any of this directly happening at all. ... It’s like being at a concert. ... I’m about 5’11”. I’m not the tallest guy in the world.”
Hernandez now establishes that at around 1:18pm, after police were spraying the area with some sort of chemical irritant, Rehl left the vicinity of the other defendants with the guys he had driven down from Philadelphia with: Giddings, Healion, and Vy. Rehl says he never saw the other defendants again till the trial.
Hernandez elicits that Rehl did not throw anything at police, did not knock over a fence, did not destroy property.
Hernandez also brings out that Rehl was not a Proud Boy elder, so he wasn’t privy to their chats. He didn’t have a podcast (unlike Nordean and Bertino). Nordean and Biggs did not follow Rehl on Parler, though Tarrio did.
Rehl had no conversations with Tarrio on Jan. 4, 5, or 6, 2021.
Now she shows the video of Donohoe throwing water bottles and re-elicits, yet again, that Rehl was nowhere near.
Next Hernandez turns to the fact that, in certain chats, after the November election, Rehl mentioned preparing for the fact that Biden was going to be president. He testifies that, unlike [Pennsylvania state senator and unsuccessful gubernatorial candidate] Doug Mastriano, he did not believe there would be some “rabbit coming out of hat here.” He accepts the fact that Biden is president, he says.
Hernandez then asks Rehl how he became a fourth-degree Proud Boy. Rehl says he was visiting with the New Orleans chapter president in New Orleans—an African-American man—and “I actually stood in between [the chapter president] who was about to get spit on by somebody because he was wearing a MAGA hat, and they spit on me instead.”
Hernandez now shows photos of Rehl, Demetrius Robbins, and Isaiah Giddings at a Proud Boy partying event in Las Vegas called West Fest. (Robbins and Giddings are black.) Rehl says Robbins was “one of my best friends at the time.”
Now Hernandez turns to Telegram. He says it’s more of a social media app than a messaging app. Rehl was in around 20 chats with 10 more people in each, he says. He set his notifications so all of them were off. He got a notification only if the administrator of a chat “pinned” a message to a group chat. (Implication: he didn’t necessarily see the violent provocative messages in MOSD chats.) Telegram was almost the only social media app he saw, Rehl testifies, because “I was banned off of pretty much every social media platform.”
Hernandez leads Rehl through a long discussion of how Telegram works. (At least two reporters covering the case—Brandi Buchman (@Brandi_Buchman) and Jordan Fischer (@JordanOnRecord of @WUSA9) later described Hernandez’s direct examination this day as a “filibuster.” Since Judge Kelly had already announced that there would be no court on Thursday or Friday, April 13-14, due to a juror’s schedule conflict, it appeared to them that Hernandez was trying to ensure that the government did not commence its cross-examination of Rehl—which she anticipated would be “savage,” according to her arguments earlier that day before Judge Kelly—prior to the four-day weekend.)
Rehl testifies that he didn’t read many chats.
If I were to go through and read every single message in every single chat by every person in the entire organization, I don't even think there's enough time in the world to do that. ... It's impossible.
Rehl says he did not see the “victory cigar” video Pezzola made and left on Telegram from inside the Capitol on Jan. 6 contemporaneously.
There was absolutely no cell service on my phone at the time for -- like, I had text service, but Internet service I barely got anything. I could barely get in any app at all.
Now Hernandez asks him about a message he left on Jan. 7, 2021: “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.”
Rehl says he was proud of “the protest,” the “huge crowds of people waving flags”—“it was a historical moment.
Now turning to Rehl’s own filming of breach 1—the barricade at the Peace Circle—Rehl testified as follows:
I didn't know what was going on at the time. When we collided with that crowd of people, that crowd was really rowdy. ... And when they started, you know, shaking that gate, I heard it and I went over there to try to investigate and record the scene, what was going on, and I seen some people being rowdy. They were, you know, shaking the barrier; shaking, you know -- and, like I said, at the time, what was going through my head was these people, they must know where these stages are that I've been talking about [where people were scheduled to give speeches] and, maybe, they're trying to get there a few minutes early. And, like, look, sorry -- you're giving me this look like -- but it's the honest God truth.
Now Rehl tells Hernandez that the voice on his video that says “Fuck ‘em, let’s storm the Capitol,” was not his. He says he “didn’t even know what was going on at this point in time.”
Hernandez also has Rehl focus on the non-Proud Boy we now know to be Paul Russell Johnson, who was riling the crowd at the Peace Circle through a black megaphone. “He kept interrupting our chants to tell the people to do something completely different,” Rehl testifies. “Mr. Biggs was chanting, I believe, ‘Eff-Antifa, eff-Antifa,’ and he [i.e., Johnson] would chime in and say, ‘You can eff-Antifa all day long. This is where it’s at,’ ... pointing to the Capitol. And he had his whole own crowd of people that he showed up there with when we met.”
Now we turn to Bertino’s podcasts. Rehl says he never watched them. He’s also never watched Biggs’ podcasts, though he might have “share one to ... just help them promote their little podcast. ... I don’t like watching podcasts.” He didn’t watch Nordean’s podcasts either, he says.
Hernandez now has him repeat his account of what MOSD was about—protecting Proud Boys, preventing violence, and so on. He says it wasn’t just for Jan. 6, but was for anticipated events after that, as well. Jan. 6 was just the next thing on the calendar.
At 12:30pm, the court breaks for lunch.
Judge Kelly returns at around 1:45pm. There is some initial discussion of the agenda for the next day, when they’ll be meeting without the jury (due to a juror’s schedule conflict) to discuss jury instructions.
Now Hernandez brings up that she would like to introduce evidence that the three men who accompanied Rehl to D.C.—Giddings, Healion, and Vy—were only charged with misdemeanors. She says it’s pertinent to rebutting the government’s claim in its opening argument that Rehl brought a “fighting force” to D.C.
Judge Kelly doesn’t want to take up the jury’s time with this; says she should speak to the government first to see if it objects; but that he thinks it’s probably inadmissible under his earlier rulings about the irrelevance of prosecutorial charging decisions.
Now Hernandez resumes her direct exam of defendant Rehl.
She shows him, yet again, his own video of Breach 1 (the toppling of the Peace Circle barricades). She has Rehl repeat that it’s not his voice on his video talking about storming the Capitol. He suggests that it must be someone somewhere behind him.
Rehl also states that the phone view of what was happening was better than his own view in real-time, because he was holding the phone above his head level.
Hernandez elicits that Rehl had no intent to attack the Capitol, and that neither defendant Nordean nor defendant Biggs had ever told him to storm the Capitol. (He’s already said he’d never spoken to Pezzola.)
He repeats that when he came to the Peace Circle he was thinking there would be stages in the vicinity where Trump might be speaking.
And my understanding was that somewhere, somewhere around this area, there's supposed to be stages set up. That's what I was understanding before I came there that day. ... [W]hat was crossing my mind at the time was, there's a huge crowd of people who want to go rush the area and try and find these stages, so that that way, they can be in the front and see the president speak, because that's what people do. They want to be in the front. It's like that in protests. It's like that in concerts. . . . So the fact that people were trying to push these barriers and get up to that area, it didn't really phase me at the time, and it didn't.
Now Hernandez has him explain another message he posted at 6:20pm on Jan. 6: “This is what patriotism looks like. ... When government fears its people, you have freedom. When people fear government, you have tyranny.” Rehl says the latter quotation comes from Thomas Jefferson and it’s used “metaphorically.” It was about protesting, not about beating up cops or destroying property.
Then Hernandez asks him about his opinion today about Jan. 6.
I think what ultimately unfolded, all the violence, was a disgrace. I do. And I think that ultimately, it's not the sort of reason -- 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 assaulted cops, they're charged with that, rightfully so.
Next, Hernandez returns to the subject of MOSD and how it was allegedly set up to prevent events like the Bertino stabbing of Dec. 12, 2020. Rehl testifies that videos show that Bertino was the “aggressor” in that incident and “that’s exactly the type of behavior we trying to prevent.” He continues: “Ironically, I know he was in a leaders chat and everything, but that's the kind of behavior we wanted to rein in.”
On Jan. 6, Rehl left the Capitol grounds around 3:30pm, he says. He “just got drunk with my friends.” The next morning he was hung over and upset that some senators had revoked their “objections” to certification and were blaming what had happened at the Capitol for their decisions. “I went to the chats and I vented a little bit,” he testifies. “I said a bunch of shoulda, coulda, woulda crap, and that’s all it was.” It was then that he posted statements like, “we should have held the Capitol.”
And what I meant is essentially stayed there, and I meant -- and when I mean that, "stay there," is the fact that Democrats, when they show up somewhere, they – I definitely respect Democrats for this, because when they show up to a protest, they will pitch a tent and stay. They will stay in a park and let their voice be heard basically.
Rehl also testified, confusingly, that “the people who committed violence . . . they undermined the legal process that Trump was trying to put in place.”
Now, jumping around a bit, Hernandez turns to a video Rehl posted on Nov. 17 and which is already in evidence. She is likely. doing this preemptively, because she knows the government will almost certainly show it again on cross. It’s a brutal video Hernandez fought hard, but unsuccessfully, to keep out of evidence from the start. It shows an apparent Antifa woman (black) with a knife being knocked unconscious by a single punch she never saw coming from a Proud Boy who snuck up behind her. In text accompanying the post, Rehl wrote, “She got what she deserved.”
Rehl testifies that his understanding is that this woman took someone’s American flag and then swiped a knife at someone’s face, cutting the bridge of their nose. Rehl wasn’t present; he was in St. Louis when it happened.
Hernandez now plays CCTV video showing Rehl entering the Capitol at 2:53:24pm (about 40 minutes after the building was first breached). He testifies that the police officers present did not ask him not to enter the building. He then identifies his friends Freedom Vy and Isaiah Giddings entering with him, and Jeff Finley, the West Virginia Proud Boy (also black) who testified earlier as a Rehl witness. Hernandez brings out that none of Rehl’s defendants are in the vicinity.
Rehl says he was in the Capitol for 20 minutes.
Shown another video of himself inside the Capitol, Rehl testifies that he was looking for a restroom, which he eventually found.
Now we jump forward to 3:30pm, when he leaves the Capitol grounds. Unable to find an Uber, he and his three friends walk back to their hotel, The Darcy [a very upscale hotel at 1515 Rhode Island Ave., about 2.5 miles from the Capitol].
Now Hernandez runs through some elements of the crime, eliciting Rehl’s assertions that on Jan. 6 he used no force, and did not conspire with any of the defendants to use force. His intent was “to participate in a protest and let [his] voice be heard.” He stood to gain to personal benefit. He was not bribed by Trump to do what he did. [Hernandez is hoping that appellate courts, unlike the federal district courts, will eventually interpret the “corruptly” element to require something like the state of mind of someone giving or receiving a bribe.] He did not intend to obstruct, influence, or impede any proceeding, other than “we hoped the legal process would play out in favor of Trump.”
Rehl says that “the Capitol is a public building, police were letting people in, I thought it was fair game to go in.
Hernandez continues count by count, through the ten-count indictment, having his disavow key elements of each. (This takes a lot of time.)
When Hernandez is done, Judge Kelly gives the jurors and court reporter their afternoon break.
When court convenes again, Judge Kelly is expecting the government to start its cross-examination. But Sabino Jauregui, representing defendant Enrique Tarrio, now asks Judge Kelly to allow him do his own direct examination of Rehl. He claims that Rehl “implicated my client multiple times.” Judge Kelly is surprised. “How did he do that,” he asks. But when the judge asks the government its position, AUSA Kenerson admits he’s not certain whether the law permits Tarrio to do such a direct or not. He won’t object if Hernandez doesn’t, which she doesn’t.
Jauregui then commences his direct of Rehl.
Rehl met Tarrio in 2019 and they are “friendly.” Tarrio’s a “dedicated” leader, works hard, loves his position, per Rehl. The Proud Boys are hard to organize—like “herding cats”—and every chapter is autonomous and sometimes there are rifts between chapters.
Tarrio was a “laid back” participant in the Telegram chats, per Rehl, and you would have to “tag” him most of the time to get his attention.
Now Jauregui has Rehl talk about Telegram chats again, how many of them there were, and how impossible it would be to read all the messages.
Tarrio believed in free speech, per Rehl, and it wasn’t Tarrio’s job to rebuke speech in the chats. The Proud Boys sometimes try to out-insult each other. The Telegrams are “edgy,” Rehl says, especially later at night when people are drinking.
Tarrio sometimes says “outrageous” things to the media or on Parler to “troll” people, according to Rehl, generating likes, clicks, shares, or attention. Even if such posts generate criticism, the criticism helps boost the page algorithmically to get more attention.
Now Rehl brings up, unbidden, that Tarrio was always worked with law enforcement behind the scenes. He would do that to reduce violence, Rehl says.
Moving in a new direction, Jauregui elicits that you can become a fourth-degree Proud Boy by doing charitable events. Jauregui tries to get Rehl to say how Tarrio became a fourth-degree Proud Boy—based on what Tarrio told him—but the objection is sustained.
In response to Jauregui’s questions, Rehl says that Tarrio never marched Proud Boys into danger. Tarrio has, indeed, marched the Proud Boys away from danger in the sense of marching them away from Antifa.
Rehl testifies that his feelings toward law enforcement never changed. Jauregui asks if Tarrio’s feelings about law enforcement ever changed, but an objection is sustained.
In response to Jauregui’s questions, Rehl says, no, he never saw Tarrio disrespect, insult, or hit a law enforcement officer. Tarrio tried to protect them.
Now Jauregui asks Rehl about a message Rehl sent on Nov. 18, 2020: “Just don’t cooperate with cops. They aren’t our friends. They aren’t allowed. They will take any of your statements and give it to the Soros-paid-for DA, which is a whole different ballgame.” Rehl says he just meant that they “have a job to do. ... I just said ‘don’t cooperate.’ I didn’t say ‘go attack cops.’”
Jauregui then turns, once again, to the subject of why Tarrio created MOSD. AUSA Kenerson objects that it’s “cumulative”—i.e., redundant or overkill—but Judge Kelly allows it. Again, Rehl says it was to prevent more stabbing events, like what happened on Dec. 12, 2020.
When Jauregui asks Rehl what his role was on Jan. 6, Rehl says he was in operations and handled the radios. Rehl says they did use radios on Jan. 6, in part to keep the marchers together.
If Tarrio hadn’t been arrested, Rehl says, Tarrio had been planning to give a speech on Jan. 6, with the Proud Boys marching afterward.
Rehl testifies that he never saw the 1776 Returns document until trial.
When Jauregui asks Rehl why the Proud Boys wore “no colors” on Jan. 6, Rehl said there were a couple reasons. One related to an event Tarrio had gone to in Georgia where the Georgia chapter was upset Tarrio had gone (in colors, apparently). Rehl says that the DC Proud Boys chapter didn’t want a Proud Boys event on Jan. 6. “We kind of negotiated and we agreed not to wear colors,” Rehl says.
Asked if he shared Jeremy Bertino’s view of the Proud Boys’ objective on Jan. 6, Rehl says, “I don’t know how he came up with it. ... I thought it was ridiculous, to be quite honest.”
Finally, Jauregui asks Rehl who Kenny Lizardo is. (We’ve learned earlier in the trial that Lizardo had a reporting relationship with the FBI—i.e., he was an informant.) Rehl says Lizardo was a Boston chapter Proud Boy who had expressed interest in joining Rehl’s Philadelphia chapter, though that never happened.
Jauregui then plays video and has Rehl identify Lizardo as the Proud Boy who came to pick Tarrio up at the D.C. jail on Jan. 5, and who then drove him to the Phoenix Park Hotel.
Switching to video of the Proud Boys meeting at the Washington Monument on Jan. 6, Jauregui elicits that the only plan or objective Rehl ever knew about was to meet there at 10am. Jauregui also then asks him about why Rehl says, on the video, “Make sure there is no press around.” Rehl says it had to do with doxxing. “We go to great lengths to try to prevent doxxing.”
Asked what his understanding was of what they’d be doing after they went to the Capitol to make a presence, Rehl said he thought they’d be turning around and going to the main rally.
Jauregui also draws attention to the many photographers following the march. “It's tough to do a conspiracy with the media following your every footstep?” Jauregui asks. The objection is sustained.
Jauregui plays the video of the Proud Boys kneeling to pray. “Were you praying for a successful storming of the Capitol there?” Sustained.
As Jauregui starts to play video of the Proud Boys reaching the food trucks, Judge Kelly calls it a day. He reminds the jurors that they won’t be meeting Thursday or Friday, and to be back Monday morning, April 17. He asks the attorneys to be back the next morning at 9am (when they will be discussing jury instructions).
Day 53, April 11, 2023
Judge Kelly starts by discussing what to do about the fact that a juror (Juror Number 1268) has a work-related obligation on Thursday and Friday of this week. (Today is Tuesday.) All the defendants objected to dismissing the juror. The government wanted to dismiss him to continue hearing testimony. The judge will keep the juror and try to use the downtime productively.
Next, the judge takes up the government’s motion to exclude the testimony of Duffy Hoffman, a proposed expert in window valuation that Roger Roots, for defendant Dominic Pezzola, wants to call. He’s also hearing a motion Roots filed to require the government to disclose alleged confidential human sources (CHSs) or undercover agents with knowledge of the Proud Boys who worked with agencies other than the FBI.
AUSA Jocelyn Ballantine, responding to the latter motion, says that the prosecutors have no obligation to search for and disclose information from 18,000 law enforcement agencies across the United States, nor from intelligence community agencies. She says that the government has already disclosed, fifteen months ago, 65 videos taken by Metropolitan Police Department officers who were “essentially acting as roving pole cams” on the grounds of the Capitol.
Judge Kelly denies Roots’s motion regarding the CHSs. He’ll reserve ruling on Roots’s expert until he’s reviewed Roots’s written motion again.
Attorneys for all five defendants now state that they do not want to call any of the three Metropolitan Police Department officers who have been provided to discuss the Antifa presence at the November and December rallies. Several of the attorneys complain, however, that they were not provided these witnesses earlier.
After a 10-minute morning break, Judge Kelly orally grants the government’s motion to exclude Roots’s expert on window valuation. He’s says he’ll issue a written ruling explaining his reasoning later.
Judge Kelly then formally canvasses, on the record, the three defendants who have definitively decided not to testify about their decisions not to testify to ensure sure they understand their rights. The three are Ethan Nordean, Joseph Biggs, and Enrique Tarrio.
The judge then asks for a sealed bench conference.
Then, in open court, attorney Hernandez and the judge argue for a period about the US Marshal’s policy of having a marshal sit behind a detained defendant when he or she testifies. She’s afraid that when her client, defendant Zach Rehl, testifies, it will tip off jurors that he’s in custody. Judge Kelly says he takes her point but he’s not going to “countermand the procedures they use in every single case in the United States.” He will, however, try to minimize the marshal’s conspicuousness to jurors.
The jury is then brought in. Judge Kelly informs them they will not sit on Thursday or Friday. He also tells them he expects that they will “receive the case for deliberation at some point next week.”
Then attorney Carmen Hernandez calls defendant Zach Rehl's eight witness, the defense team's eighteenth: David Jones.
Jones is a licensed private investigator in Washington, DC. He’s been one since 1997. Before that, he was in the U.S. Navy. He graduated from the University of Maryland.
Jones says that, in his capacity as an investigator working with Hernandez on this case, he’s viewed discovery in this case.
Hernandez shows him government exhibit 400D, a video Rehl took on Jan. 6 at 12:54:09 p.m. (This is his footage of “breach 1,” the toppling of the bike-rack barricades at the Peace Circle.) On it, a voice says words to the effect (as Hernandez recalls it) “Fuck it, let them storm the Capitol.” (Earlier, in the government’s case, FBI agent Nicole Miller testified that the voice is Rehl’s, and that he’s saying, “Fuck them, storm the Capitol.”)
Jones testifies that he’s met Rehl “over a dozen times,” and that each meeting is “over two hours.” He says that no voice on exhibit 400D sounds familiar to him. At the end of the tape he does hear Rehl “clear his throat and say the word ‘yeah.’”
Now Hernandez shows Jones government an excerpt from exhibit 1001 showing the Peace Monument scene. Jones identifies demonstrator Paul Russell Johnson, who is wearing a black baseball cap with a diamond emblem, a black hoodie, and a backpack. Johnson has a megaphone.
Hernandez then introduces a new video, marked Rehl Exhibit 65. Jones identifies Johnson again. The diamond emblem is a Harley-Davidson logo and Johnson is wearing camo pants. This video shows Johnson pushing the bike-rack barrier.
Now Hernandez shows government exhibit 401G, which is a photograph Rehl took on Jan. 6 (near the media tower). Jones identifies defendant Pezzola in the corner. The photo was taken at 1:13:07 p.m.
Now Hernandez shows Jones a photo marked Rehl Exhibit 66. It was taken by Rehl’s phone at 1:13:11 p.m., four seconds after government exhibit 401G. Pezzola’s not visible in this picture. Jones points out that the Washington Monument is in the center of the photo.
Now Hernandez brings up a portion of a video, government’s exhibit 436. This segment also shows Paul Russell Johnson.
Cross examination by AUSA McCullough:
Referring to the video of rioter Johnson pushing over the bike-rack barrier near the Peace Circle, AUSA McCullough asks of if that Johnson took a “violent” action against the fence. Jones agrees but attorney Norm Pattis, for defendant Biggs, objects (“legal characterization,” and Kelly sustains the objection. McCullough then establishes that Johnson took a “physical action” against the fence.
“Based on your extensive experience as an investigator, is it harder to push down a fence that’s bolted to the ground or one that’s not bolted to the ground?,” McCullough asks.
Pattis’s objection is sustained.
Now McCullough asks if defendants Nordean, Biggs, and Rehl also had a megaphone at the Peace Circle. “One did, yes,” Jones answers.
Now McCullough is showing how Nordean and Biggs used the megaphone earlier in the day, during the Proud Boys march, to rile up the Proud Boys during periods with Johnson—who is not a Proud Boy—was not present.
McCullough also elicits that Jones hasn’t reviewed videos from anywhere before the Peace Circle.
McCullough then shows videos showing Nordean, Biggs and Rehl leading the Proud Boys to the Peace Circle where Biggs leads chants of “Whose streets Our streets.” Johnson was not present in these videos, Jones agrees. Then Biggs leads chants of “Whose Capitol? Our Capitol” and then “Whose house? Our house.”
Then McCullough shows Rehl’s own video of the breach near the Peace Circle, asking if it’s true that Rehl gets “right up on the fence”? “A couple of bodies back, yes,” Jones says.
Q. The person taking this [i.e., Rehl] is right behind [Johnson], correct?
A. Behind to the left.
Q. And ... the person taking this rushes across that barrier, correct?
A. He crosses the barrier, yes.
Q. One of the first couple people across that barrier, correct?
A. Couple dozen, yeah.
Now McCullough re-plays the video with sound. He elicits from Jones that it appears to be Rehl saying “ahhh-ah.” Jones says he can identify Rehl because “I take into consideration the ‘ahhh-ah’ grunting sound is close to the camera that’s filming this.”
McCullough asks Jones if he agrees that the voice saying “Fuck them, storm the Capitol” is also the closest to the camera. Jones doesn’t agree.
McCullough now plays an excerpt from government exhibit 404K (around the time of Pezzola’s alleged riot shield theft). He asks if Jones can make out Rehl’s voice saying “Too late for that, but fuck it.” Jones agrees that that sounds like Rehl’s voice.
Redirect by Hernandez:
First, at a bench conference, Hernandez argues that McCullough opened the door for Hernandez to now show an open-source video showing Johnson, in an interview after the Jan. 6 riot, claiming credit for toppling the barrier. Judge Kelly adheres to his earlier ruling excluding the interview as hearsay.
After very brief redirect, Hernandez is done and we break for lunch.
After lunch, formally advises Rehl, on the record, that if he chose not to testify he would instruct the jury not to use that against him. Rehl says he understands and still seeks to testify.
And some more argument about whether the marshal must sit behind Rehl as he testifies, Judge Kelly holds firm. The marshal will sit in small space below the witness box, barely visible to most jurors. (Norm Pattis, for Biggs, joins Hernandez’s objections to having the marshal there at all.)
Hernandez then calls Rehl's ninth witness, the defense team's nineteenth: defendant Zachary Rehl himself.
Hernandez leads Rehl through is biography. He is 37 and married. His wife is present in the courtroom. His oldest daughter is 18 and his younger just turned one a few months ago. Hernandez shows a picture of the (adorable) daughter again, though the jury has already seen it.
Rehl has one brother. His father died when Rehl was 12. His father was a police officer. After his death the family had a “rocky” time, bouncing around from house to house. His mother was a bartender. When he was 16 he and his brother went to live with a cousin.
After he graduated from Northeast Preparatory High School, he started selling cellphones. (He’s lived in the Philadelphia area all his life.)
Stepping back, Hernandez elicits that he started working young. He was a caddy when he was 14, then worked in a movie theater at 16. After selling cell phones for awhile (starting at 19), he also sold beds and then cars. When the economy blew up in 2008 he joined the Marines. He was stationed in Yuma, Arizona.
Rehl held a supply position in the Marines, known as traffic management. He did not see combat.
After a shoulder and back injury, Rehl was honorably discharged from the Marines in 2012, six months early. Rehl received honors while in the service. He was meritoriously promoted to lance corporal.
When he left the Marines he went to college, supporting himself with GI benefits. By then he had met his current wife, Amanda. He went to Temple, majoring in finance and later marketing. He may be the first in his family to go to college. He doubts his parents finished high school. His grandfather was a Philadelphia police officer. (Hernandez is skipping around a little bit.)
He graduated in 2016. Then he got a masters in innovation management and entrepreneurship. His GPA was close to 3.6.
While at Temple, Rehl reunited with (his earlier character witness) Henry McGill, whom he’d met while in the service in Yuma. Rehl had invested in a bar. McGill was in the rap scene and was a rapper himself. McGill did (and booked?) performances at the bar.
Rehl now discusses another of his witnesses, Jonathon Lam Nguyen. Rehl also met him in Yuma, when Nguyen was a Navy medic.
Rehl got his masters in 2017. He joined the Proud Boys in around 2018. He was trying to get his business up and running, and the Proud Boys events helped him “expand his network.” They also stood for free speech and entrepreneurship. He joined the Philadelphia chapter.
Rehl doesn’t want to mention the chapter president at the time because of doxxing. He says his mother has been doxxed and has received threats because of this trial.
Rehl eventually became president.
Now he mentions Demetrius Robbins, another of his witnesses. Rehl explains that Robbins became a second degree Proud Boy (in a ceremony we saw video of earlier) at an American Legion hall.
Rehl notes that a huge part of why he liked the Proud Boys was the sense of brotherhood that he’d lost when he left the Marines. “You can’t put a price on that.”
Now Rehl discusses “Uncle Tony,” another earlier witness (whose real name is Anthony Joseph Guiffre). Uncle Tony called Rehl a party boy. Rehl testifies “there’s party boys and rally boys but ... that’s just the inner Proud Boys joke. Because the rally boys party more than anybody. ... I could party even more by going to protests because there’s nothing better than an after-party protest. ... We’d get our voices heard on various subjects and ... we’d go get lit.”
Rehl denies having a “drinking problem” but says “I have a problem where I like to have fun.”
Rehl’s Telegram handle is Captain Trump. He liked Trump because he was about “lowering taxes” and “he was a business guy.”
As for politics, Rehl says he believes in a woman’s right to choose. “There’s some things I lean liberal, there’s some things I lean conservative,” he says. “I’m independent.”
He received no salary for being president of the Philly chapter. Dues were voluntary in his chapter.
“One of the things we like to do in the Proud Boys is make better men,” Rehl says. “We helped each other out. We looked out for each other.”
He came to a rally in D.C. for July 4, 2020. He met Robbins there. He paid to put up Robbins and his family in two rooms at the Harrington Hotel. They feared for their lives because counterprotesters were threatening them. That night Enrique Tarrio made Robbins a first degree Proud Boy. Robbins’s cousin, Isaiah Giddings, also became a first degree then. There was no violence at the July 2020 event.
Rehl did not go to the Nov. 2020 rally. Rehl did coordinate some of the daytime activities on Dec. 11-12, 2020.
Rehl was not present when Jeremy Bertino was stabbed. He’s pretty sure he was in his hotel at the time. He was definitely in his hotel when the flag was burned. “I remember seeing it out the window. . . . It looked like a bonfire was going on in the middle of the street.” Rehl didn’t punch anyone or destroy any property.
One of Rehl’s Philly guys had a heart attack at that rally. They were able to get an ambulance in time for him using their walkie-talkies. That’s why he became very vocal about the value of having walkie-talkie radios at rallies. He wanted them at the Jan. 6 event, too. They were also useful for keeping the marchers together.
At the afternoon break, after excusing the jury, Judge Kelly tells Hernandez that she’s been repeatedly testifying as to evidence in the case. Even though the government hasn’t been objecting, he wants her to stop.
After the break, and before the jury is brought out, Judge Kelly notes that he’s pleased with the positioning of the marshal, who is almost out of sight. He says he’s been watching, and jurors don’t seem distracted by the marshal’s presence.
At the time of the elections, Rehl was following the election and Pennsylvania was a big swing state. Trump was focused on Philadelphia as an alleged site of election fraud. Rehl was following the legal process. “Almost any president that I can think of has exercised this legal process to some extent ... even Hillary Clinton. ... Trump is no different. He’s just louder about it, and you knew it because he’s a loudmouth. ... Let’s be real.” Rehl also mentions that [former New York City Mayor Rudolph] Giuliani came to the state and state senator [Doug] Mastriano was involved in saying election results were “not accurate for whatever reason.”
Asked about whether the passage of time affects his memory, Rehl says “being locked up in jail for two years kind of affects it as well. ... I have no access to anything I used to have—”
The government’s objection is sustained. [The jurors aren’t supposed to know that defendants are in custody.]
At sidebar, Hernandez says she didn’t expect that answer, but doesn’t want the judge to strike his answer because “it will make it look like he did something wrong.” The judge wants to strike it and AUSA Kenerson agrees. Norm Pattis (for defendant Biggs) supports Hernandez, arguing that if the defendant says incarceration has had an impact on his ability to recall he should be allowed to say that.
Then, after the sidebar, the judge does strike Rehl’s answer and instruct the jury not to consider it.
Now Hernandez asks Rehl about why the Ministry of Self Defense was created. Rehl says it was “clear as day” that it was created after the Bertino stabbing to “minimize any potential violence” and “protect our members from getting injured. Rehl says it was also in response to the huge influx of people joining after Trump mentioned the Proud Boys on the debate stage. “We don’t want some new guys coming in and thinking because they seen on YouTube some fight happening that that’s what we were all about.”
In answer to Hernandez questions, Rehl says he’s never personally attacked or assaulted a police officer. He often worked with police in Philadelphia to avoid violence, he says.
Tarrio invited Rehl to become one of MOSD’s leaders. The top echelon was Tarrio, Biggs and Nordean—the “marketing” team—and then operations was Rehl and John Stewart, Rehl says.
Rehl says he attended the MOSD Zoom meeting on Dec. 30, 2020, but was drinking at the time.
Aaron Wolkind, who was an MOSD leader, was vice president of Rehl’s Philadelphia chapter. “Aaron loved recruiting and he was very good at vetting guys. ... I made him VP for that reason.” But Tarrio invited Wolkind to MOSD, not Rehl.
Hernandez asks Rehl about “provocative” Telegram messages Wolkind made. “He’s a grown-ass man,” Rehl says. “It’s not my job to police what he says in a chat room. ... It doesn’t mean I agree with him at all.”
The people Rehl brought into MOSD were Demetrius Robbins, Isaiah Giddings, “Uncle Tony” Guiffre, Freedom Vy, Brian Healion, Jim Kelly, and a couple others. Robbins and Kelly never came to DC; Guiffre came but spent the day drinking.
Rehl drove to DC for Jan. 6 with Giddings, Vy, and Healion. They shared a hotel room together. On the way, in Delaware, they each bought a case of 30 beers.
Rehl ultimately entered the Capitol with Giddings, Vy, Healion, and Jeffery Finley, who was also one of Rehl’s witnesses. Rehl says that, so far as he knows, none of these men assaulted police officers or destroyed property on Jan. 6.
On Jan. 5, the plan for the next day was “not fully established. ... It was expected we would probably march around the city like we always do. And then afterwards we would hang out with our cliques and drink, basically.”
Rehl knew of no “objectives” for Jan. 6, he testifies.
At 9:35 p.m. on Jan. 5 Rehl was still asking about plans for the next day because “nobody knows what the heck is going on.”
Hernandez draws attention to a Telegram message
Hernandez pulls up Exhibit 501-56, a Telegram thread from the evening of Jan. 3, 2021. Rehl writes: “Is @NobleLead [Tarrio] still doing a speech? Where is that? These are things holding up my thought process for the moment. Other than that the capital [sic] is a good start.”
In response, Rehl testifies that he still thought Tarrio would be giving a speech and “there’s stages and permits issued all over the City — not only just permits but some of the areas around the Capitol were expected to have stages set up there.”
Rehl also claims that in an earlier post in that threat, where Johnny Blackbeard Stewart that the Proud Boys’s “main operating theater” on Jan. 6 should be “out in front of the Capitol building,” that Stewart wanted to go “to the biggest stage where most of the biggest names are going to be giving their speeches.”
Rehl was not present at the Airbnb on the night of Jan. 5 (where Biggs and Nordean met). He knew of no plan for Jan. 6 except to show up at the Washington Monument at 10 a.m.
On Jan. 6, no one told him to attack the Capitol—not Nordean, Biggs, Tarrio, Donohoe. None told him to destroy property. None told him to assault officers. Rehl brought no firearms to D.C. Rehl says he did not, in fact, assault any police officer, destroy property, or direct anyone else to do those things. He didn’t direct defendant Pezzola to take a shield or break windows. “I didn’t even know Mr. Pezzola prior to Jan. 6.”
Around 1:18 p.m., Rehl separated from Nordean and Biggs and never saw them again until shortly before the trial started.
Rehl says he went into the Capitol “after it was understood that Mike Pence had evacuated.” A friend texted him that. Inside the Capitol he was not with any of the defendants. The police officers were “welcoming” when he entered the building. Hundreds were walking in at that point. It was like a baseball game. While there, he did not assault impede any officer or member of Congress.
Judge Kelly then excuses the jurors until 10 a.m. the next morning. Attorneys are to convene at 9:30 a.m.
Day 52, April 6, 2o23
In the morning, Judge Kelly decides to exclude expert testimony from Steven Metcalf’s witness on behalf of Pezzola. Metcalf says that, in that case, he’ll just present the same witness, Steven Hill, to talk about the pertinent videos without offering expert opinions.
DOJ Attorney then mentions that he has two Metropolitan Police Department officers available today to be interviewed by the defense. They were present at the November and December rallies and can speak to the threat that Antifa presented at that time. Though Mulroe says the testimony would be irrelevant, he’s making them available.
Attorney Norm Pattis (for def. Joe Biggs) says the defense also wants to interview a third officer, an Officer Tomasulo (ph).
Judge Kelly thinks a limited amount of such evidence—perhaps a stipulation—might be appropriate.
Judge Kelly then leads another discussion of the jury instructions until the mid-morning break.
After the break, Metcalf calls Pezzola's third witness, and the defense team's sixteenth: Steven Kay Hill.
Hill is retired. He began his career as a law enforcement specialist with the US Air Force. After six years of that, he became a police officer with the Albuquerque Police Department. He was there for 19 years before retiring. He headed its SWAT team for his last eight years there. He was, among other things, a firearms instructor for “less-lethal weapons systems.”
As Metcalf shows a video (Pezzola Exhibit 200) of skirmishes in the west plaza, Hill says that Inspector Loyd is making a “circle the wagons motion.” He points out some officers at a higher elevation, including a woman with a “less-lethal weaons system” called an FN-303. Another officer with a similar gun arrives shortly thereafter. Now Hill narrates as, he says, less-lethal pellets strike “a few people.” Hill points out the anger of the crowd in response. Now he focuses on Joshua Black, who’s been hit by an FN-303 round. Someone’s yelling “They just shot him in the fucking face.” Now people in the crowd provide medical aid to Black.
Now Metcalf shows another video (Pezzola Exhibit 172A. Hill says it shows that someone in the crowd is removing the FN303 round from Black’s cheek. A riot policeman tries to take Black into custody, but demonstrators prevent him from doing so. “You’re not taking him. He’s one of ours,” someone says.
Then we reach the point where defendant Pezzola and Officer Mark Ode struggle for the shield. Hill testifies that another man, with a W on his jacket, has his hands on the shield, too.
Metcalf now shows Pezzola Exhibit 136, another video. Hill says one round strikes a man near his cheek or chin. Another hits a man in the back of the neck. This man turns around and gets hit again, this time in the chest.
Now we see Pezzola Exhibit 171. It shows the FN303 which has a warning sign on it. Hill says the warning says, in substance, “Improper use can result in death,” or “Do not shoot this at the head or face of anybody: could result in death.”
Then this video shows Black getting hit in the face. Hill says he can hear a supervisor telling one officer with an FN303 a particular individual to try to aim at.
Now there’s a short bench conference, but it’s held under seal. Afterward, Judge Kelly recesses for lunch.
After the lunch break, the court enters another sealed session.
When the courtroom reopens, Metcalf resumes direct of Steven Kay Hill, who continues describing what he’s seen from close review of videos of the west plaza crowd scene on Jan. 6.
Hill then summarizes what he’s seen. In the beginning of the videos, the crowd was pushing and shoving against the police. But after officers from above started shooting less-lethal rounds “the crowd gets angrier and angrier.” At least ten such rounds were fired, according to Hill, including the one that struck Black. Five of them struck people in the face, per Hill.
DOJ attorney Conor Mulroe then does cross-examination.
Mulroe elicits that the police officers on the West Plaza were badly outnumbered—by at least 10:1. Mulroe plays police radio clips in which supervisors instruct officers to “identify agitators.”
Hill admits that officers were not firing indiscriminately, but were, rather, focusing on three particularly assaultive rioters. Mulroe also elicits—and shows video demonstrating—that the crowd was engaging forcefully with police even before less-lethal rounds were fired.
Mulroe also brings out that at least three rioters struck by a less-than-lethal projectile retreat after being struck. In other words, the pellets have the desired deterrent effect on them. Mulroe also elicits that one rioter struck by a pellet had been grabbing a police officer by the throat beforehand.
Mulroe also elicits that some rioters render medical aid to Joshua Black, after he’s struck by the pellet—rather than “flying into a rage and stealing shields from police officers.” Mulroe also elicits that despite Black’s injury, Black ultimately made his way into the Capitol and all the way to the Senate floor. (The point is that the less-lethal rounds are truly less than lethal.)
On redirect, Hill states that
one video appears to show Pezzola at one point touching his head, as if to see if he’d been hit, and also ducking and protecting his head with his hands. Hill also testifies that Pezzola was not an agitator until after Black was hit with the pellet.
Hill is done and the Court takes a 10-minute break.
After the break, attorney Sabino Jauregui, for defendant Enrique Tarrio, introduces 46 exhibits as part of Tarrio's case.
To accomplish this, Jauregui calls as Tarrio's third witness, the defense team's seventeenth, Jaclyn Kosinski, a law student an intern with Tarrio's team. Jauregui then asks her to read each exhibit.
Most of these exhibits are messages between defendant Enrique Tarrio and Metropolitan Police Department Lt. Shane Lamond. (The government tried to keep these out of evidence as hearsay. But Judge Kelly has decided to let them in—not for the truth of the matter stated, but to show the nature of Tarrio’s relationship with Lamond. Tarrio wants to argue, in effect: Why would someone who has this sort of close, quasi-informant relationship with the police, be plotting to oppose the authority of the U.S. government? Tarrio had wanted to call Lamond as a witness, but Lamond is effectively unavailable because he has told the court that, if called, he would invoke his Fifth Amendment right to remain silent. He is currently under investigation by the FBI because of his close relationship with Tarrio. Earlier in the trial the government showed several message exchanges that suggested Lamond was giving Tarrio valuable intelligence information rather than vice versa.)
Kosinski reads the messages. Tarrio’s exchanges with Lamond start on Oct. 24, 2019 and continue through Dec. 7, 2020. In general they involve Tarrio advising about impending Proud Boys events and rallies.
On Nov. 9, 2020, for instance, Lamond asks Tarrio how many Proud Boys will be coming to the Nov. 14, 2020, rally, and he responds, “150-200.”
There are also a few messages, from Nov. 7, 2020 to Jan. 4, 2020, between Lamond and other police or intelligence officials in which Lamond references information from his “source” or “ET,” the implication being that that’s Tarrio. These include Dave Engel of the Department of Defense; a group chat involving Guillermo Rivera, Carolyn Montagna, Robert Glover, and Assistant Chief Jeffrey Carroll of the Metropolitan Police Department; Virginia State Police Officer Ben Tyler; and U.S. Capitol Police Officer Jack Donohue.
On Dec 3, 2020, for instance, Lamond sends a message to the group chat about the upcoming Dec. 12, 2020, rally. The intern reads:
Shane sent a message at 7:14:30 a.m.: GM, all. Sorry to be the bearer of bad news, but I heard from my PB source, while he doesn't have a concrete number, he said we can expect to see close to double what we had last time for 12/12.
On Dec. 19, 2020, Lamond texts the group chat. Kosinski reads:
Shane sent a message at 3:32:39 p.m.: From my source about January 6th: If we do, it will be extremely small and not in colors. No night march.
After those exhibits, the jury is given a break and the attorneys continue talking. Carmen Hernandez, for Rehl, wants to introduce a video interview available on the Internet of a non-Proud Boy Jan. 6 rioter, Paul Russell Johnson. (Johnson has been charged in a separate indictment that also includes rioter Ryan Samsel among others.) In the online video Johnson boasts of having played a key role in the toppling of the Peace Monument barricade. Johnson is the one at the Peace Monument in a black hat and black hoodie riling up the crowd through a black megaphone. Alternatively, she would like to introduce the criminal complaint against Johnson, which links to that video interview. But Judge Kelly thinks his video statements are hearsay and that the boastful YouTube video lacks indicia of “trustworthiness.” In addition, he says, “there are [already] mounds of video evidence in the case” showing “this gentleman’s conduct that day.”
The jury is then brought back in. Carmen Hernandez, for Rehl, then reads to the jury a stipulation she's reached with the government about her client, defendant Zachary Rehl.
1. Mr. Rehl enlisted in the U.S. Marine Corps on October 14th, 2008, and he was honorably discharged on May 30th, 2012.
2. In 2010, Mr. Rehl was meritoriously promoted from private first class (E-2) to lance corporal (E-3). He was later promoted to the rank of corporal (E-4).
3. He earned the Marine Corps good conduct medal after three years of honorable and faithful service without any disciplinary infractions. His unit was awarded the Navy unit commendation.
4. As a traffic management specialist, part of Mr. Rehl's responsibilities included the shipment of materials, supplies and equipment to Marines overseas.
5. Mr. Rehl suffered a lower back injury during his time on the traffic management team. Mr. Rehl also suffered a shoulder injury while engaged in a training exercise on an obstacle course. Mr. Rehl's various injuries led to his honorable medical discharge in May of 2012.
6. Mr. Rehl attended Temple University using what are commonly referred to as GI benefits. He earned a bachelor of business administration degree on July 29th, 2016. He earned a master's degree in innovation management and entrepreneurship from Temple University in 2017 with a 3.5 grade point average.
7. Mr. Rehl did not attend the rally in Washington, D.C., on November 14th, 2020.
8. On the evening of January 5th, 2021, Mr. Rehl was not in attendance at the Airbnb with Mr. Nordean and
9. Mr. Rehl was not present in the location of the west plaza area of the Capitol when Mr. Donohoe threw two water bottles at a line of law enforcement officers at
1:25 p.m. . . . At that time, Mr. Rehl was present in a different area, at the rear of the west plaza of the Capitol. ...
10. Mr. Rehl was not present on the upper west terrace between 2:11 and 2:13 p.m. during the incident described during the trial as ... “Breach 4,” when the window of the Capitol was shattered. Atthat time, Mr. Rehl was present in the west plaza of the Capitol. ...
The jury is then excused for the Easter weekend, and told to return around 11 a.m. Tuesday.
After the jury leaves, the judge tells the attorneys to convene at 9 a.m. Tuesday and then recesses.
Day 51, April 5, 2023
Judge Kelly spends much of the morning discussing jury instructions with the attorneys (outside the presence of the jury).
After a morning break, he takes up a matter under seal, which lasts through to the lunch break.
The afternoon session also begins under seal.
Finally, when the courtroom reopens mid-afternoon, the jury is brought in and attorney Steven Metcalf, for Dominic Pezzola, calls Pezzola's second witess, the defense team's fifteenth, Lisa Magee.
She is 40 and has two daughters: Angelina, 18, and Maria, 22. Magee met Pezzola in 2001 and has been with him for a little over 22 years. When they met, Pezzola was a single father trying to obtain custody over Maria.
Pezzola was a Marine who’d been an avid boxer in high school. At some point his coach was Gloria Peek, “the first African-American lesbian boxing coach who later went on to coach individuals in the Olympics.”
At that time he was the apprentice to an electrician. Later he transitioned to his father’s flooring business. Later he began his own flooring business.
They have three dogs. Another dog, Cyrus died seven years ago. (Lisa needs a tissue, apparently crying.)
“Dominic would work day and night to provide for myself and our daughters, sometimes 70, 80 hours a week.”
When covid hit, “it was extraordinarily difficult. ... The majority of his contracts were pulled.”
On May 30, 2020, there was a Black Lives Matter protest in Rochester, NY—where they lived—which turned violent. Lisa was sent home early from work due to safety concerns. Diners at a restaurant in the city were attacked by protesters, and restaurants were destroyed.
A construction trailer was set on fire that belonged to a company that had contracted work to Pezzola. That job was shut down for some time.
Lisa began to see changes in Pezzola. “He started drinking very heavily and would inundate himself with Fox News day and night.” He became “consumed” by politics, which had “barely” interested him before. Lisa told him “to find some friends and get a hobby.”
Toward the end of Nov. 2020 Pezzola applied to become a Proud Boy. At the Nov. 14, 2020, rally he met Proud Boy Dick Sweats.
He went back to DC for the Dec. 12, 2020, rally. By then he was a PB and ended up having his photo on the front page of the Washington Post. Lisa told him, “You’re a fucking idiot.”
Just before New Years he took another trip to get away from New York State’s covid lockdown. She eventually learned that, while on that trip, she stopped to see Jeremy Bertino for an hour.
On Jan 3 or 4, Lisa’s father told Pezzola not to go to DC for Jan. 6, as he’d been planning, because he had responsibilities at home. Pezzola said he was right and wouldn’t go.
Lisa says she was going to have a “girl’s night out” on Jan. 6. When Pezzola learned that, he decided that if she was going to be out anyway, he’d go to DC. He left Jan. 5.
Cross-examinnation by AUSA McCullough:
On cross, McCullough elicits that Pezzola has a strong commitment to the things he believes in.
Asked if Pezzola shared with her that he believed the country was on the brink of civil war, Lisa replied, “I don’t recall.”
McCullough elicits that in addition to rallies Pezzola went to six or seven meet-ups with Proud Boys, and that he delivered a Proud Boys shield to Bertino when he went to the Carolinas.
McCullough has Lisa testify that the handwriting in the spiral notebook taken from Pezzola’s home in a search—the one about “Why I want to be a Proud Boy”—is Pezzola’s. She says she’s never read that portion, though. He brings out the sections that says he’s willing to fight to his last breath to make sure his children won’t inherit a communist country and another that says, “If we’re not in a civil war, I would like to open a dog sanctuary.” And another section: “I truly believe this is a battle between good and evil, freedom versus tyranny, capitalism versus communism.”
When asked, Lisa says Pezzola had never shared any of these sentiments with her.
Lisa volunteers that she was frustrated with “the amount of drinking” Pezzola was doing. “He went from drinking a couple of beers to drinking entire bottles of bourbon.”
McCullough elicits that after Jan. 6, Pezzola returned Jan. 8 but left again on Jan. 9.
Redirect by Metcalf
Metcalf elicits that the man who drove Pezzola to the Carolinas was named Caspar and that he made multiple stops to visit his friends and family.
Lisa Magee is excused.
Metcalf then reads this stipulation to the jury regarding Aaron Sauer and Arthur Lashomb.
- Mr. Pezzola traveled from New York to Washington, D.C. with Aaron Sauer, Arthur Lashomb and Matthew Greene on January 5th, 2021.
- On the night of January 5th, 2021, Mr. Pezzola stayed in the same hotel room as Aaron Sauer, Arthur Lashomb, and Matthew Greene.
- On the morning of January 6, 2021, Pezzola Sauer, Greene, Lashomb left the hotel at the same time and walked to the Washington Monument where they arrived at approximately 10 a.m.
- Between 11:15 a.m. and 11:20 a.m., Pezzola, Sauer, Greene, and Lashomb left the march and walked around different blocks in Washington, D.C.
- !t approximately 12:50 p.m., Pezzola, Sauer, Greene, Lashomb walked back into the crowd involved in the march headed towards the Peace Circle.
- Shortly thereafter and prior to the breach of the police barricades at the Peace Circle, Pezzola, Sauer, Greene, and Lashomb joined the demonstrators at the Peace Circle.
- Sauer and Lashomb did not have any contact with any other defendants in this case.
The jurors are then excused for the day.
After they leave, Judge Kelly listens to Metcalf argue for why he wants to be able to present expert testimony to testify about the less-lethal pellets that were being fired into the plaza when Pezzola obtained the shield from Ofc. Mark Ode. Metcalf wants the expert to testify that the shooting of less-lethal pellets near rioters’ heads was excessive force. Judge Kelly is skeptical, because he’s already ruled earlier in the case that Pezzola cannot present a self-defense claim. Metcalf becomes very forceful during his presentation, with Judge Kelly telling him, “You don’t have to scream. We’re all right here.”
In the end, Judge Kelly asks Metcalf to put his argument in writing and he’ll weigh it.
After some discussion of scheduling, Judge Kelly recesses for the day.
Day 50, April 4, 2023
AUSA McCullough resumes his cross of defendant Zachary Rehl’s fifth defense witness, Demetrius Robbins. McCullough elicits that much of Robbins’ testimony the previous day had nothing to do with Jan. 6. McCullough elicits also that Robbins had little to no memory of any involvement in the Ministry of Self Defense (MOSD) or any of its chat groups, was never involved in the Boots on Ground chat group, and that Robbins left the Proud Boys entirely before the end of Dec. 2020.
Though McCullough’s cross is not particularly confrontational, Robbins becomes quite combative.
Q. And you didn't go to Washington, D.C. on January 6th, did you?
THE WITNESS: I mean, you want police reports? I can give that to you, also. You like investigation? I can give you everything you want.
Q. I'm sorry. I --
A. I wasn't on January -- I wasn't there January 6th. You keep asking me the same questions over and over. I mean, I see you digging for something you're not going to get.
In one exchange Robbins makes a confusing reference to “Democratic city,” which seemed to be a shot at the fairness of the jury and the entire trial.
Q. So you don't know what people were saying on the ground on January 6th?
MR. PATTIS: Objection.
THE WITNESS: If I wasn't there, how the hell am I going to know?
MR. PATTIS: 403.
THE COURT: Over- --
THE WITNESS: I didn't go there.
THE COURT: Hold on.
MR. PATTIS: If he wasn't there --
THE COURT: Hold, hold, hold, hold, hold, hold.
THE WITNESS: What the hell? Like --
THE COURT: It -- the objection is overruled. Mr. McCullough, you can re-ask your question.
THE WITNESS: I said -- let's go. Let's go. Democratic city. Got you.
Rehl then calls as his sixth witness (the defense team's twelfth), Jonathon Lam Nguyen. (He is a character witness.) Nguyen, 41, met Rehl in 2009 in Yuma, Arizona, where both were then stationed in the military—Nguyen in the Navy and Rehl in the Marines. Nguyen describes Rehl as “a great person” who “would give you the shirt off his back,” and someone who’s “always been there.” Asked about his “honesty and integrity,” Nguyen testifies, “I would trust him with my baby.”
On cross examination, AUSA McCullough elicits that while Nguyen was a second degree Proud Boy in the Mount Baker chapter (in Washington State), Nguyen did not participate in MOSD or Boots on Ground. “I don’t even know what you’re talking about,” he testifies. He also did not come to Washington, D.C. on Jan. 6, 2021.
McCullough also brings out that since Rehl and Nguyen hadn’t lived in the same area of the country since 2012, they’ve mainly communicated by phone and text since them. Rehl visited Nguyen once in Washington State, in 2020, but that’s about it.
Rehl then calls his 7th witness, the defense team's thirteenth, Henry William McGill. (He's another character witness.)
McGill, 40, is black. He comes to the stand wearing a Naval Academy football jersey with the number 12, Roger Staubach’s number when Staubach played there. Carmen Hernandez, Rehl’s attorney, establishes that McGill’s favorite player is Jim Kelly, the former Buffalo Bills quarterback.
McGill met Rehl in Yuma, when both men were in the Marines. McGill was in a flight equipment unit. McGill was only in Yuma for two weeks, but the men met “partying.”
Hernandez elicits (preemptively) that McGill was later dishonorably discharged from the Marines for smoking marijuana.
McGill eventually met Rehl again when he was enrolled at Temple University in Philadelphia, studying tourism and hospitality management. He stayed in contact with Rehl from 2012 to 2017.
McGill writes “lyrical poetry” known as “hip-hop,” he testifies, or rap music. He performed at a bar and restaurant Rehl owned in Bridesburg, PA, called Bada-Bing, and also acted as a “promoter” of other performers there for three or four months.
McGill moved to Florida in 2017 but has kept in touch with Rehl by phone and text since then.
“I have a very high opinion of [Rehl’s] integrity and truthfulness,” McGill testifies. “Everything that he said he would do, he did it. He provided me an opportunity. He never went back on his word.
He always followed through.”
On cross, AUSA McCullough brings out that McGill has never been a Proud Boy; was never privy to their Telegram chats; does not know what the MOSD or Boots on Ground were. McGill also wasn’t in Washington on Jan. 6, 2021 and has no personal knowledge of what Rehl did that day. Finally, McCullough establishes, McGill is unaware of any of the evidence that has been presented in this case.
On redirect, Hernandez attempts to elicit from McGill that he has attended “BLM rallies” or that he is sympathetic to Black Lives matter but the government’s objections are sustained.
At this point, the case for defendant Joe Biggs begins.
To start, Norm Pattis, one of Biggs’s two lawyers, reads two stipulations to the jurors. Stipulations are agreements between the parties—intended to save time—about certain evidence that is not in dispute.
The first stipulation contains biographical information about Biggs:
- Mr. Biggs enlisted in the United States Army on November 9th, 2004.
- Upon completion of basic training, he became part of the Army's 82nd airborne unit.
- While assigned to the 82nd airborne, Mr. Biggs deployed to Iraq and Afghanistan for two years and two months.
- During his service in Iraq and Afghanistan, Mr. Biggs was injured and he was subsequently awarded a purple heart.
- Mr. Biggs was honorably discharged in 2012 due to non-combat-related injuries. Mr. Biggs receives disability payments from the United States Government for his service-related injuries. He was a staff sergeant at the time of his discharge.
- Mr. Biggs became an online journalist upon discharge.
- After the 2016 election, Mr. Biggs began to work as an online personality for an entity called InfoWars. His employment with InfoWars ended November 2017.
- In 2018, Mr. Biggs moved from Austin, Texas, to Florida.
- Mr. Biggs has a five-year-old daughter.
The second stipulation, also read to the jury by Pattis, is about the use of informants, or “confidential human sources,” both in general and in this case.
- Confidential human sources are used by the Federal Bureau of Investigation to gather information that the FBI uses to investigate crimes and to monitor potential threats to domestic or national security.
- The FBI's use of CHSes is governed by guidelines issued by the Attorney General of the United States, AG guidelines. The AG guidelines define a CHS as, quote, "Any individual who is believed to be providing useful and credible information to the FBI for any authorized information collection activity, and from whom the FBI expects or intends to obtain additional useful and credible information in the future, and whose identity, information, or relationship with the FBI warrants confidential handling."
- Between on or about November 3rd, 2020, and January 6th, 2021, the FBI maintained at least eight CHSes, including Aaron, who provided reporting that included information on or regarding, among other matters, the Proud Boys.
“Aaron” testified earlier in the case, on Mar. 29 (Day 46 of the trial), as a witness for defendant Ethan Nordean.
Next, Biggs’s attorneys force the jury to watch the entire 99-minute Zoom call of Dec. 30, 2020, at which defendant Enrique Tarrio and other leaders of the newly created Ministry of Self Defense chapter purported to explain to newly recruited MOSD members what the purpose of MOSD was. The government, of course, contends that the explanation given provided clues to what it was really about, but was neither comprehensive nor candid. The defense argues that the MOSD leaders’ relatively anodyne explanations were candid. The govt introduced 14 excerpts from this call on Feb. 9 (Day 17 of the trial) which I have either provided or linked to in the live-blog for that day.
After lunch, we move to the case of defendant Dominic Pezzola.
Attorney Roger Roots calls as Pezzola's first witness (the defense team's fourteenth), Patrick Reilly.
Reilly, who lives in Boston, works in advertising and shoots television commercials. As a hobby he does “event photography at political events.”
Reilly testifies that he recognizes defendants Biggs, Nordean, and Tarrio from various political events he has gone to since 2019. He recognizes Rehl, too, but has never heard his voice. He’s never met Pezzola, he says.
Reilly says he’s become friendly with Biggs and shared an Airbnb room with him on a couple occasions while attending events in 2019.
Reilly came to DC on Jan. 6 on an overnight train that arrived around 8 a.m. He began taking photos at the Ellipse around 9:20 a.m., and then went to shoot the Proud Boys when he saw them near the Washington Monument. He took photos along the march. Along the way, he said hello to Biggs and Nordean.
Asked if he shared their politics, Reilly responds, “Absolutely not.”
Reilly testifies that there were “tons of media there all over the place.” (The implication is that the Proud Boys would not conspire to commit crimes in front of all these photographers.)
Reilly marched with them until “the march was over,” by which he means their arrival at the food trucks.
Biggs had a radio in his shirt pocket, Reilly testifies, but Reilly never saw Biggs use it. “I saw him kind of messing around with it, looking kind of frustrated, like it wasn't working,” he says. He didn’t see any Proud Boy using a radio, he adds.
Reilly then testifies that he went home after he got to the food trucks, thinking the event had “petered out.”
Q. So how would you describe the crowd there at the food trucks?
A. It seemed like the event was over, that they seemed kind of -- it was kind of quiet, quiet and almost sad. It's like nothing really happened, so it's done. At that point, I started to figure: Okay. I'm thinking about getting the train home because this thing is done. ... It seemed like almost a sad ending to what started out as kind of a, you know, raucous event, and then it just petered out. And that seemed to be the end of it.
Reilly then went to the train station and headed back to Boston.
On cross-examination, AUSA Erik Kenerson establishes that Reilly’s return train trip had been pre-booked. Reilly says, however, that he’d been prepared to switch if the event had merited it.
Kenerson then establishes that Reilly wasn’t present when defendant “Ethan Nordean rounded up the group and said they were going to go take a round-about”; wasn’t present when the group marched to the Peace Circle; and that Reilly knew nothing about “what what that group did from when Ethan Nordean rounded them up to when they got to Capitol grounds.”
At this point, about 2:14 p.m., Judge Kelly excuses the jury and commences a sealed session that lasts for the remainder of the afternoon.
Day 49, April 3, 2023
Day 48, March 31, 2023
Day 47, March 30, 2023
Day 46, March 29, 2023
Day 45, March 28, 2023
Day 44, March 27, 2023
Day 43, March 24, 2023
Day 42, March 22, 2023
Day 41, March 21, 2023
Day 40, March 20, 2023
Day 39, March 17, 2023
Day 38, March 16, 2023
Day 37, March 15, 2023
Day 36, March 14, 2023
Day 35, March 13, 2023
Day 34, March 9, 2023
Day 33, March 8, 2023
Day 32, March 7, 2023
Day 31, March 6, 2023
Day 30, March 2, 2023
Day 29, March 1, 2023
Day 28, February 28, 2023
Day 27, February 27, 2023
Day 26, February 24, 2023
Day 25, February 23, 2023
Day 24, February 22, 2023
Day 23, February 21, 2023
Day 22, February 16, 2023
Day 21, February 15, 2023
Day 20, February 14, 2023
Day 19, February 13, 2023
Day 18, February 10, 2023
Day 17, February 9, 2023
Day 16, February 8, 2023
Day 15, February 7, 2023
Day 14, February 2, 2023
Day 13, February 1, 2023
Day 12, January 31, 2023
Day 11, January 30, 2023
Day 10, January 26, 2023
Day 9, January 25, 2023
Day 8, January 24, 2023
Day 7: January 23, 2023
Day 6: January 20, 2023
Day 5: January 19, 2023
Day 4: January 18, 2023
Day 3: January 17, 2023
Day 2: January 13, 2023
Day 1: January 12, 2023