Published by The Lawfare Institute
in Cooperation With
“Oh shit, this is it.”
When rioters toppled the first barricades at the Peace Circle at 12:53 p.m. on Jan. 6, 2021, that’s what government witness and cooperating Proud Boy Matthew Greene remembered thinking, according to his testimony in the recently concluded Proud Boys seditious conspiracy trial. The jury is now deliberating.
Since that morning, when he and about 200 other Proud Boys had assembled at the Washington Monument at 10:00 a.m., he had been wondering what their plan was. At 10:30 a.m., Greene had been surprised when Proud Boy leaders Ethan Nordean, Joseph Biggs, and Zachary Rehl—all now defendants in the seditious conspiracy trial—led the group on a march toward the Capitol. Greene had assumed that they’d be staying where they were to hear then-President Donald J. Trump’s speech at the Ellipse, just across the street. He also wondered why the Proud Boys had been instructed not to “wear colors” that day—a reference to their usual black and yellow apparel with appropriated Fred Perry laurel logos.
But after reaching the Capitol and then stopping for lunch, the group marched to the bike-rack barricades at the Peace Circle, arriving at about 12:49 p.m. There, Biggs led them in chants Greene hadn’t heard at the previous rally. It wasn’t just the usual “Fuck Antifa! Fuck Antifa!” but also “Whose house? Our house!” and “Whose Capitol, Our Capitol!” When rioters violently toppled those barricades four minutes after the Proud Boys’ arrival, it all suddenly seemed to make sense. “I was putting two and two together and saying, ‘This is it,’” Greene testified. (Many quotations in this article are drawn from my contemporaneous live tweets, not official transcripts.)
Four Proud Boy leaders and one Proud Boy soldier have been on trial since Jan. 12 in a 10-count indictment. The top count is seditious conspiracy, which carries a 20-year maximum prison term. Prosecutors allege that the defendants conspired “to oppose by force the authority of the government of the United States” or “by force to prevent, hinder or delay the execution of any law of the United States.” Specifically, their alleged goal was to “oppose the lawful transfer of presidential power by force.”
The defendants are Ethan Nordean, who was the Proud Boys’ on-the-ground leader on Jan. 6; Joe Biggs, who was something of a Proud Boy celebrity, due to his podcasts and appearances on Alex Jones’s InfoWars; Zachary Rehl, the head of the Philadelphia chapter; Enrique Tarrio, the Proud Boys national chairman and leader on Jan. 6; and Dominic Pezzola, a recent Proud Boy recruit who had nevertheless already distinguished himself within leadership’s eyes.
Tarrio’s case is distinct in that he was not present in Washington, D.C., on Jan. 6. He had been arrested on Jan. 4, for vandalism committed in December 2020, and ordered to leave the city. So he watched Jan. 6 unfold from a hotel room in Baltimore. Nevertheless, the government charges him for his alleged role in planning the events, and it alleges that he continued to monitor and participate in them from afar.
The reason I choose to start this story with Greene, a low-level Proud Boy, is that I think his testimony captures the essential ambiguities of the case. Greene was never told in advance of a plan to storm the Capitol. So far as the proof reveals, no one was. It’s quite possible that even the Proud Boy leaders—the defendants—did not expect the day to play out the way it did.
And yet, when the first barricade fell, the defendants (save Tarrio) and at least a dozen alleged co-conspirator Proud Boys instantly became the tip of the spear in the insurrection. They played crucial roles in the first four security breaches that culminated in rioters invading the Capitol. Vice President Mike Pence, senators, and members of Congress fled for their lives, forcing suspension of the joint session of Congress to certify the Electoral College vote.
But was that a conspiracy? Or were the defendants just doing what more than a thousand other rioters did that day: participate in a spontaneous riot triggered by President Trump’s months of incitements and touched off by his fiery speech at the Ellipse? At 12:17 p.m., Trump had commanded his crowd to “fight like hell or you won’t have a country anymore,” Tarrio’s lawyers emphasized at trial. Just 36 minutes later, rioters toppled the first barricade.
The government argues that it need not prove a plan. As Department of Justice attorney Conor Mulroe caustically put it at one point, the charge is not seditious plan; the charge is seditious conspiracy. And as long as there is an agreement—even an unspoken and implicit one—to achieve an unlawful objective, that’s sufficient. The shared objective, the government alleges, was the goal of stopping the certification of the election by any means necessary, up to and including force. The jury instructions, approved by U.S. District Judge Timothy J. Kelly of the District of Columbia, seem to accommodate the government’s theory.
If this is a correct description of the law, I personally think the government has proved its case. But the jury may disagree and, of course, so might an appellate court.
Let’s pick up with Greene, again, where I left off. Later, I’ll flash back to the important lead-up to Jan. 6.
After rioters toppled the Peace Circle barricade, Greene followed defendant Dominic Pezzola through the barrier. Greene had driven down from New York state with Pezzola and two other Proud Boys the day before. Though both men were low-level Proud Boys, Pezzola had already been praised and recognized by the group’s national leadership for his valor in street fighting. “In my mind,” Greene testified, “if I wanted to be near the action, I wanted to be near him. In my state of mind at that point, believing we were on verge of civil war and this could be the opening, I wanted to be close.”
Pezzola, in turn, seemed to be following defendant Ethan Nordean’s lead. (Pezzola, who testified at trial, said he went through the barrier to look for another New York Proud Boy, William Pepe.) When the barricade fell, Nordean—the top Proud Boy on the ground that day—raised his fist in the air. That was a signal to the Proud Boys behind him to stop. (His attorney argued that this showed that Nordean had never joined a conspiracy to storm the Capitol.)
A moment later, however, Nordean brought his fist down and marched forward. When he did, dozens of Proud Boys followed him into the restricted grounds of the Capitol.
Defendant Rehl, head of the Philadelphia chapter, made his own iPhone video of the Peace Circle breach. He can be heard on it saying, “Fuck them. Storm the Capitol!” according to an FBI agent who pored over Rehl’s videos. (Rehl, his wife, and a Rehl-hired investigator testified that it wasn’t Rehl’s voice.)
“My understanding of my experience in December 2020 is we were supposed to go along with what was happening,” Greene testified, referring to an earlier Proud Boys rally he’d attended that had ended in violence. “I personally had the abstract feeling that the Proud Boys were going to be part of something [on Jan. 6]—the tip of the spear.”
As mentioned, the Proud Boys were the tip of the spear on Jan. 6. They were among the first wave of rioters to pour through the downed barrier at the Peace Circle, which prosecutors referred to at trial as Breach 1.
As they fast-walked down the Pennsylvania Walkway toward the Capitol, Proud Boy William Pepe—not a defendant in this trial but charged separately—moved unmanned barriers out of the way to clear a path for the crowd. Then, at a black metal fence across the West Plaza, anchored into the cement, Nordean and Biggs personally helped tear the barrier loose from its moorings, the government contends and video appears to show. The destruction of that fence—whose pickets were then used as weapons by rioters—allowed the mob to surge further forward and forced police officers to retreat. At trial, prosecutors referred to that moment as Breach 2.
Next, Dan Lyons “Milkshake” Scott, a Florida Proud Boy who had marched with the Proud Boys group that morning, overpowered a police line at a staircase at the base of the inaugural scaffolding. This was Breach 3, in the government’s terminology. It allowed rioters to stream up a set of stairs. Close to a dozen Proud Boys celebrated this breach by taking selfies of themselves making a Proud Boys hand gesture.
Inside the scaffolding, Pezzola made his way to the front of the mob, where he taunted police officers who briefly held another line at the top of the steps:
You better be fucking scared! ... We ain’t fucking stopping. Fuck you. You better decide what side you’re on, motherfuckers! You think Antifa’s bad. Just you wait!
When rioters broke through that line, Pezzola raced up the last set of steps and then to the building itself. There, using a riot shield he had allegedly violently wrested away from an officer on the West Plaza, Pezzola smashed out two window panes just south of the Senate wing doors. This allowed the very first rioters to jump into the building, including Pezzola and two other Proud Boys. A couple of these rioters then kicked out the Senate wing doors from the inside, allowing the mob to stream in unimpeded. This first wave included Biggs and at least two other Proud Boy comrades, according to an FBI witness’s testimony. Defendants Nordean and Rehl entered the building later through different doors, after those had been forced open by other rioters.
Now let’s flash back and sketch out the highlights of the rest of the government’s case, to see if the proof of conspiracy gets any stronger. Again, personally, I think it does.
After the election, the defendants came to believe the election had been stolen from Trump. They used some extreme rhetoric, both publicly and privately. “Time for fucking war if they steal this shit,” Biggs said on Parler. Nordean posted:
We tried playing nice and by the rules, now you will deal with the monster you created. The spirit of 1776 has resurfaced and has created groups like the Proudboys and we will not be extinguished. ... We are unstoppable, unrelenting and now—unforgiving. Good luck to all you traitors of this country we so deeply love‑you're going to need it.
Of course, all of this was First Amendment-protected speech, had it stopped there. But it didn’t.
On Dec. 19, at 1:42 a.m., Trump posted a tweet calling for a rally on Jan. 6. “Be there. Will be wild!” About 15 minutes later, Proud Boys chairman Tarrio, of Miami, started a text conversation with Biggs, of Ormond Beach, Florida. After complaining about Proud Boys party boys who just liked to drink, Biggs wrote, “Let’s get radical and get real men.”
Early the next morning, a little after midnight, Tarrio created a new, highly secretive Proud Boys chapter focused on the Jan. 6 rally, called Ministry of Self Defense (MOSD). He started a new Telegram chat group for MOSD’s leaders, explaining to Biggs: “This is the thing. The new thing.”
When Tarrio sought approval for the new chapter from a Proud Boys governing body called the Elders, Tarrio said its purpose was to “standardize event organizing.” But then he added: “—whispers— Seventeen seventy six ... .” (Ellipses in original.) The government contends that this was Tarrio’s wink-wink way of telling the Elders that MOSD was about rebellion.
Tarrio then appointed himself, Biggs, and Nordean, of Seattle, as the top-tier leaders of MOSD—called its “marketing” committee. The second-tier leaders—the operations committee—include Rehl, and another Pennsylvania Proud Boy named John Stewart (Telegram handle: Johnny Blackbeard). “Regional commanders” were Charles Donohoe of Kernersville, North Carolina; Jeremy Bertino, also from the Carolinas; and Aaron Wolkind, who was Rehl’s vice president in the Philadelphia chapter.
Each MOSD leader then invited 10 hand-selected recruits into a larger MOSD Members group. On Dec. 27, a new Telegram chat group was formed for them. Bertino invited Pezzola, who had distinguished himself at a rally on Dec. 12, 2020, by tackling and holding for police an Antifa protester who had stabbed Bertino. (The government contends that the man had stabbed Bertino in self-defense, and that Pezzola pummeled the man while he was down. The police had to use pepper spray on Pezzola to get him to stop, the government suggests.)
For the group chat emblem for the MOSD Members group, Tarrio selected a drawing of a man wearing a gas mask. On Dec. 30, 2020, the MOSD leaders held a Zoom meeting for members. There, leaders told members to keep MOSD chats secret—even from their Proud Boy brothers in their home chapters. They were told to follow instructions. “Fit in or fuck off,” Bertino commanded the recruits. “[T]urn your brains off a little bit on trying to figure out what the big picture is and follow the ten guys you’re with,” said Stewart. Whenever a member asked what the objective was for Jan. 6, Tarrio deflected the question. “I’m not gonna go into too much detail about the 6th,” he said.
Defense lawyers argued at trial that MOSD was exactly what its name suggested: a group devoted to self-defense and preventing a recurrence of what had happened in December, when Bertino was seriously stabbed. Some portions of the Zoom call support this theory. Donohoe told recruits to be in “strictly defensive mode unless you believe the threat is so imminent that you believe that your life is in danger.” Tarrio said, “We’re never going to be the ones to cross the police barrier or something to get to somebody. We’re always going to be the ones standing back ... and the ones to fucking defend.”
As Jan. 6 approached, MOSD leaders and members of the MOSD evinced anti-police sentiment in the chats. This was a stark shift for the Proud Boys, who had always previously urged “Back the blue.”
On Jan. 1, in the MOSD Leaders chat, Aaron Wolkind wrote, “Our disposition to the police needs to be evaluated.” Bertino (using the handle NobleBeard) responded: “#fucktheblue.” Biggs then wrote: “I’m ready to just be the Zamboni [a]nd roll over mother fuckers.” Some MOSD members began referring to police as “coptifa.”
Similarly, as Jan. 6 approached, there were increasing references to violence and to the Capitol.
On Dec. 29, an MOSD member left a voice message: “[W]e’re gonna need to fuckin probably raise a lot of bail money, uh, um, that’s a strong possibility, just sayin.”
In personal podcast messages, promoted on Parler, Nordean openly threatened and extolled violence. “I don’t want to have to use force against the government,” he said in one. “I don’t think anybody really wants to because the repercussions are unknown. ... But here’s the thing. We will replace you,” he continued, referring to the police. “We’ll assemble an army that will replace you, like that. Like, I’ll take your badge. It’s mine now.”
On Dec. 31, in another podcast, Nordean said: “When police officers or government officials are breaking the law, what are we supposed to do as people. Discourse? Debate? No, you have to use force.”
On New Year’s morning, chairman Tarrio celebrated with dark musings on Parler. “Let’s bring [in] this new year with one word in mind... Revolt,” read one. (Ellipsis in original.) “New Years Revolution,” read another.
At 7:10 p.m. on Jan. 3, in a voice message left on the MOSD Leaders chat, John Stewart proposed that “the main operating theater” for Jan. 6 “should be out in front of the Capitol building” because “that’s where the vote is taking place.” The next morning, at 7:36 a.m., Tarrio (Telegram handle: Noble Lead) left a damning voice message response: “I didn’t hear this note ’til now. You wanna storm the Capitol.”
Also on Jan. 4, one MOSD member asked: “[W]hat would they do if 1 million patriots stormed and took the Capitol building. Shoot into the crowd? I think not.”
John(ny Blackbeard) Stewart, an MOSD leader, then responded: “They would do nothing because they could do nothing.”
At roughly the same time as that exchange, Tarrio was arriving at Reagan National Airport in Arlington, Virginia, across the Potomac from Washington, D.C. Tarrio was on notice that D.C. police were considering arresting him for his involvement in the Dec. 12, 2020, burning of a Black Lives Matter banner that had been stolen from a church. (The jury saw video of the banner burning but was not told that it bore a Black Lives Matter legend or where it came from.) At the airport, Tarrio may have realized he was being followed. He placed a short Telegram call to Biggs, who called him back, connecting for 129 seconds. Nineteen seconds after they hung up, Tarrio sent Biggs a direct message: “Whatever happens... Make it a spectacle.” (Ellipsis in the original.) Biggs responded, “Yup.”
Shortly after Tarrio crossed into Washington, D.C., Metropolitan Police officers pulled over his cab and arrested him. They charged him with both vandalism and, after searching his suitcase, felony possession of large-capacity ammunition-feeding devices—two magazines suitable for an AR-15 or M-4 rifle. (Here, Freudians may justly stroke their chins in wonderment that Tarrio, knowing he might be arrested for vandalism and almost certainly knowing about D.C.’s tough gun laws, chose to gift authorities with this gratuitous felony charge. But that’s beyond the scope of this article.)
A judge released Tarrio on bail on Jan. 5 but ordered him to leave the city. He went to Baltimore that evening, where he obtained a temporary phone. He then spent Jan. 6 in his hotel room there.
Tarrio’s arrest threw the Proud Boy plans into turmoil. On Jan. 4, within an hour of learning of it, Nordean and Donohoe called for the “nuking” and “scrubbing” of all MOSD chats. (Many Telegram threads ultimately recovered by the FBI and used at trial were, in fact, littered with blank messages, which an FBI forensic expert testified were likely the result of deletions.) On the evening of Jan. 4, the Proud Boys Elders granted Nordean (Telegram handle: Rufio) “war-time powers” to fill in for Tarrio.
By Jan. 5, substitute Telegram chat channels had been set up, and once Tarrio obtained a new phone, he was brought into them.
On Jan. 5, when Pezzola was late to arrive at Matt’s Greene’s house for the drive to Washington, D.C., Pezzola left two voice mails explaining that he was going to be late because he was trying to calm down his wife, who was upset he was going to the event. In the second of those, he said: “[I] keep trying to tell her, after this month it should calm down a little bit unless we’re in a full-blown fuckin war.”
On the evening of Jan. 5, defendants Biggs and Nordean met in an Airbnb where some other Proud Boys were staying. In the new (post-arrest) MOSD Leaders chat, Biggs told the others, “We have a plan. I’m with rufio [Nordean] ... I gave Enrique [Tarrio] a plan. The one I told the guys and he said he had one.”
Defendant Rehl, who missed the meeting, asked, “what were some of the objectives agreed on,” but no one responded. (His attorney argued to the jury that this showed there was no agreement on an objective, at least by Rehl.) The only plan discussed in the chats was to meet at the Washington Monument the next day at 10 a.m.
The next morning, Nordean led the Proud Boys on the march toward the Capitol, beginning at 10:30 a.m. He, Biggs, and Rehl were in the lead. Along the way, many photographers tagged along, including one in-house Proud Boy photographer, Eddie Block, who was livestreaming much of the event. The defense lawyers later argued to the jurors: Would you bring photographers with you if you were in the process of committing seditious conspiracy?
While they walked, defendants Nordean and Biggs riled up the Proud Boy marchers with anti-police sentiment. They were furious that Tarrio was arrested while, as they understand matters, the Antifa protester who stabbed Bertino was let off easy.
At 10:43 a.m., Nordean told them:
We put our lives and our safety and everything on the line and these people put us in jail. Well, I'm tired of it. It's time to just say no. Back the yellow. Back the yellow, gentlemen.
“Back the yellow”—alluding to the Proud Boys colors, yellow and black—was an inversion of their former pro-police slogan, “Back the blue.”
Defendant Biggs then took the megaphone and added:
[A]fter what they did to our boy Enrique, we're gonna let D.C. fucking know we're goddamn here. We're gonna let the motherfucking world know that we fucking exist and we're not going any goddamn where. So let's fucking march through this fucking city that's our goddamn city and be loud and motherfucking proud boy proud. So let's go fucking kick some goddamn ass. Metaphorically speaking, but you know what I mean.
At 11:21 a.m., the marchers passed the Peace Circle for the first time. At that hour there was only one police officer defending the barrier. Through the megaphone, Nordean told his troops and nearby protesters:
We represent the spirit of 1776. If you haven't noticed, real men are here. We know what the oath is. Support, support and defend the constitution of the United States against foreign enemies and domestic. Let us remind those who have forgotten what that means.
At certain points they pass police officers. At 11:31 a.m., Nordean says, through the megaphone:
You took our boy in and you let the stabber go. You guys gotta prove your shit to us now. We'll do your goddamn job for you. How about you start going after these terrorists so we don't have to do this. ... We don’t owe you anything. Your job is to protect and serve the people, not property or bureaucrats.
As they pass a group of riot police suiting up, members of the marching group hurled taunts at them. “Traitors.” “Pick a side.” “Remember your oaths.”
By 11:47 a.m. they had reached the Capitol and gone around to the far side of it—the eastern side. This exchange took place:
Voice: Let's take the fucking Capitol!
Another Voice: Let's not fucking yell that, alright?
Nordean: It was Milkshake, man. Ya know. Idiot.
Another voice: Don't yell it; do it.
“Milkshake” was a reference to Florida Proud Boy Dan Lyons Scott, who, about two hours later, played a crucial role in overpowering the police line at the scaffolding—Breach 3.
Nordean, Biggs, and Rehl then led the group back to some food trucks not far from the Peace Circle, northwest of the Capitol. At trial, defense lawyers called a few low-level Proud Boy witnesses—though no one in MOSD—who were under the impression that the march was just to take some photos and that the Proud Boys would eventually circle back toward the Ellipse, to see Trump’s speech. One friend of Nordean’s, who marched with him most of the way, testified for the defense that Nordean actually wanted to go back to his hotel after the food trucks, because he was hung over from the previous night.
But Nordean did not go back to his hotel. He led the group to the Peace Circle, arriving at about 12:49 p.m.—11 minutes before Vice President Pence gaveled in the joint session. At that time, there were still only about five police officers manning the barricade, which was actually a double barricade. There was an unmanned barrier and then, about 10 yards behind it, the manned barrier.
Videos presented by the government show that, before the Proud Boys arrived, the circle was still calm and sparsely populated with protesters. The arrival of 200 Proud Boys changed that. Biggs led chants through his megaphone. They evolved from “Fuck Antifa” and “USA” to “Whose house? Our house” and “Whose Capitol? Our Capitol.”
At around 12:51 p.m., Ryan Samsel—not a Proud Boy—approached Biggs and put his arm around him and said something into Biggs’s ear. Biggs said something back. The entire exchange might have lasted five seconds. About two minutes later, Samsel became the first rioter to penetrate the unmanned barrier and then, with a second non-Proud Boy rioter, strode up to the manned barrier. At 12:53 p.m., they pushed that barrier over, violently engaged police, and achieved Breach 1.
Samsel’s extremely brief huddle with Biggs has led to speculation that Biggs explicitly put Samsel up to doing what he did. (Later, after his arrest, Samsel even told the FBI such a story at one point—claiming that Biggs had a gun. Indeed, defendant Pezzola, after his arrest, briefly backed Samsel’s story, though Pezzola later recanted it. Prosecutors do not contend Biggs had a gun and signed a stipulation that no evidence supports such a theory.)
In my opinion, the Samsel-Biggs interaction was far too brief for anything of the kind to have occurred. It is more likely, as one witness suggested, that Samsel may have simply been paying homage to a hero, since Biggs—thanks to podcasts and appearances on Alex Jones’s InfoWars show—was a celebrity in far-right circles.
Also, while the time gap between Samsel’s huddle with Biggs and Breach 1 was narrow—just a couple minutes—the situation was continuing to evolve. As defense lawyers pointed out, the videos show more and more protesters with flags arriving at the scene during that brief period—presumably protesters arriving from the Ellipse. (The Proud Boys had not carried such flags during their march.) Another man with a megaphone—non-Proud Boy Paul Russell Johnson, who later helped Samsel violently topple the barriers—was also riling up the crowd with even more provocative words. “Let’s 1776 that fence,” he told the crowd, according to a criminal complaint later lodged against him.
I’ll come back to the Peace Circle one more time, but first: What’s the evidence against defendant Tarrio, whom many consider the top defendant?
In addition to his involvement in creating MOSD and overseeing the operation until Jan. 4, prosecutors alleged that he continued to follow the events and, in crucial ways, encourage the conspiracy from afar. With rioters actually inside the Capitol, he celebrated and encouraged the siege in his Parler posts. “Enjoying the show,” he wrote. “Do what must be done.” “Don’t fucking leave. Proud of My Boys and my country.” “1776.” “This is no longer Washington DC... This is the City of the People of the United States of America. Come and Take it!” (Ellipses in original.)
More damning still was the boast he made to the Proud Boy Elders at 2:40 p.m., while the riot raged. “Make no mistake... We did this.” (Ellipses in original.)
Finally, at 2:53 p.m., while the riot still raged, Tarrio tried to call Nordean once and Biggs (twice), according to call records, though the calls did not connect. At 2:54 p.m., however, Biggs returned Tarrio’s call, and they spoke for 42 seconds.
There’s more, but you’ve got the crux of it. The government’s case is a mosaic of hundreds of tiles that come together to create a damning picture. But is it a picture of seditious conspiracy?
In their summations, the defense lawyers focused on the fact that the FBI, despite having examined about half a million Proud Boy encrypted Telegram chats, texts, and Parler messages, never found a smoking gun. There was no written plan to storm the Capitol, and no one testified to an oral one either. That was so, even though three high-level Proud Boys pleaded guilty and one of those, Jeremy Bertino, testified as a government witness.
As I’ve mentioned, the government parried that it need not prove a plan. It only needs to prove an agreement as to an unlawful objective.
The defendants protested that even that broad definition of conspiracy was unproved here. One key piece of evidence they cited—which two defense lawyers displayed to the jurors in their summations—was the following snippet of transcript from cooperating Proud Boy Jeremy Bertino’s testimony on Feb. 28.
Q. Were you aware of a plan?
A. No, I was not.
Q. How about an objective?
A. No, I was not.
Alas, for the defendants, the questioning did not stop there. In her rebuttal, Assistant U.S. Attorney Nadia Moore reminded jurors (displaying the whole passage) of what the next questions to Bertino were after the ones the defense focused on.
Q. Did you have an understanding of the objective?
A. Of the objective?
Q. Objective, yes.
Q. What was your objective, as far as your understanding?
A. Stop Joe Biden from being certified as the President of the United States.
A. To save the country by any means necessary.
Q. How, if at all, did use of force factor into the objective?
A. It’s definitely included [in] by any means necessary.
Q. How did you come to understand what the objective was?
A. The cumulative conversations throughout the months prior leading up to January 6th about what needed to be done, if all other avenues were exhausted, to save the presidency and to make sure that the -- who we believed was the rightful president would be certified, not who we thought was stealing the presidency.
To be clear, neither Bertino nor Greene was an untarnished witness. When their homes were searched, each was found to be illegally possessing firearms. That—together with their involvement in either MOSD or Jan. 6 itself—gave prosecutors enormous leverage over the men, defense lawyers argued, incentivizing each to flip and say whatever prosecutors wanted them to say. Moreover, each initially lied to the FBI, minimizing their roles and denying involvement in any conspiracy. The defendants argue that portions of their initial statements to the FBI—the parts about there being no conspiracy—were the true version of what happened. It will be for the jury to sort out these very difficult questions.
After viewing the evidence, my personal belief is that Breach 1 was a surprise even to the defendants when it occurred. That continues to give me pause. But given how the defendants instantly responded, and how the troops they’d brought to the Peace Circle followed their lead, how they then worked together to effectuate Breaches 2, 3, and 4, and how the jury instructions read—I think the answer is yes.
Whether the jury will agree—or an appellate court, if there are convictions—is a fair and wide-open question.