There is an important seditious conspiracy trial happening. So that we can all follow along (I could use the review myself) I went back to the indictment, which is here, to get back up to speed.
In the last seditious conspiracy trial, two defendants Oath Keeper leaders Stewart Rhodes and Kelly Meggs were convicted of seditious conspiracy. The other defendants were convicted of related felony charges. (For more on that, see this announcement.)
Now, defendants, Enrique Tarrio, Ethan Nordean, Zachary Rehl, Dominic Pezzola, and Joe Biggs are on trial for seditious conspiracy and related felonies. I’ve explained elsewhere why this is a big deal (in a nutshell, because of the way the Constitution defines treason, this is the closest we have to a charge of treason. The crime is serious because an element is the use of force to upend government functions.)
Interesting fact #1: One of their co-conspirators, the leader of the North Carolina chapter of the Proud Boys, Charles Donohue, cut a deal with the prosecutors. He pleaded guilty to Conspiracy and Assault Charges. As part of the plea agreement, Donohoe has agreed to cooperate with the government’s ongoing investigation. We don’t know what he gave up, but presumably, his cooperation explains how the DOJ has access to all those encrypted messages it is presenting as evidence.
Basically, these guys are racists. They call themselves a “pro-Western fraternal organization for men who refuse to apologize for creating the modern world; aka Western Chauvinists.” In other words, hold to the theory that they are members of the race that created modern civilization. It’s the “our race is superior” theory. Hitler argued something similar.
If there is any doubt about where they stand on racial issues, on December 12, Tarrio participated in the theft and destruction of a banner belonging to the Ashton United Methodist Church in Washington D.C. that read #BLACKLIVESMATTER.
During the leadup to the insurrection, they posted inflammatory stuff on social media like:
- “If Biden steals this election. . . We won’t go quietly.”
- “No Trump . . . No Peace. No quarter.
- “It’s time for fucking War if they steal this shit” [referring to the Presidential election.]
- “The spirit of 1776 has resurfaced . . .”
In late December they created a new chapter known as the Ministry of Self-Defense.
On January 5, Tarrio was released from his detainment and ordered to leave D.C. He did not immediately leave. Instead, he traveled to a nearby parking garage where he met with Rhodes and others. According to the indictment, after that, he went to Maryland. News reporting now tells us that he “didn’t enter the Capitol building,” but apparently he didn’t go directly to Maryland.
Interesting Fact #2: This brings me to the next interesting fact. Tarrio never entered the Capitol building, but the government will try to hold him responsible for what happened inside. For reasons I explained here, it’s always easier to get guys inside smashing things than the guys outside cheering them on because cheering on crime isn’t a crime. So you have to go back and get a lot more evidence.
Count One (18 USC 2384: seditions conspiracy)
Here is how this works: Each crime is broken into elements and the prosecution has to prove each element beyond a reasonable doubt. The elements for seditious conspiracy are:
- Two or more persons . . .
- conspire to overthrow . . . or destroy by force the Government of the US or to levy war against them . . .
The key to this crime is the use of force.
“Conspire,” in turn, requires:
- a mutual agreement or understanding,
- knowingly entered by the defendants with
- an intent to jointly commit a crime.
- an act in furtherance of the crime*
(*The conspiracy doesn’t have to be carried out and it doesn’t have to succeed, and all participants don’t have to know what the others planned to do, but there must be an “act in furtherance,” also known as “actus reas” which is a requirement that prevents people from being prosecuted for ideas.)
From the defense perspective, conspiracy is a wide net that allows prosecutors to haul in lots of fish.
From the indictment: The purpose of the conspiracy was to “oppose the lawful transfer of presidential power by force” and “delay by force the execution of the laws” governing the transfer of power by doing the following:
- Encouraging members of the Proud Boys and others to attend the Stop the Steal protest in Washington, D.C., on January 6;
- Using websites, social media, and other electronic communications to raise funds to support travel and equipment purchases for the trip to Washington, D.C.;
- Obtaining paramilitary gear and supplies including concealed tactical vests, protective equipment, and radio equipment for the January 6 attack;
- Dressing “incognito” on January 6, rather than wearing Proud Boys colors that had been prominently displayed at previous events;
- Traveling to Washington, D.C., prior to the January 6 attack;
- Engaging in meetings and encrypted communications in Washington, D.C., in the days leading up to January 6, and on the morning of January 6, to plan for the January 6 attack;
- Using programmable handheld radios, encrypted messaging applications, and other communications equipment to communicate and coordinate the January 6 attack;
- Directing, mobilizing, and leading members of the crowd onto Capitol grounds and into the Capitol;
- Dismantling metal barricades that had been deployed to demarcate a restricted area to protect law enforcement and occupants of the Capitol;
- Storming past barricades, Capitol Police, and other law enforcement officers in efforts to disrupt the proceedings at the Capitol;
- Destroying property, including a metal fence and a window; and
- Assaulting law enforcement officers.
The indictment then offers 20 pages of everything these guys did to prepare for the attack, their travel plans, their postings on social media, the decision to go “incognito” (avoid wearing Proud Boy colors) and instead dress in black. They divided their leadership into “tiers.”
One asked, “What would they do if a million patriots stormed and took the capitol building? Shoot into the crowd?” On January 3, a person responded to a voice note by saying, “I didn’t hear this voice not until now, you want to storm the Capitol.” They also talked about how to clear the history of their chats.
The indictment quotes lots of comments from ‘encrypted messaging applications.’
At 2:39 Tarrio responded to a question posed by a Proud Boy member, “Are we a militia yet?” Tario said, “Yep.” Then: “Make no mistake . . . we did this.” (This is known as a confession, but even confessions are not necessarily airtight. “Ladies and gentlemen of the jury, my client didn’t actually mean it. He was blah blah blah.”
Other crimes they are charged with:
- 18 USC 1512(k) Conspiracy to Obstruct an Official Proceeding
- 18 USC 1512(c)(2), (2) Aiding and Abetting, Conspiracy to Obstruct an Official Proceeding
- 18 USC 372: Conspiracy to prevent an officer from discharging his duties.
- 18 USC 231(a)(3)(2) Civil Disorder, Aiding and Abetting
- 18 USC 1361, 2 (Destruction of Government Property, Aiding and Abetting)
- 18 USC 111(a)(1) Assaulting, Resisting, or Impeding Certain Officers
- 18 USC 2112: Robbery of Personal Property of the United States
Notice that Aiding and Abetting was added to most of these crimes. Aiding and Abetting is a separate crime that basically means you helped someone else charge the crime.
Prosecutors often add anything they can to make sure they’re able to get the defendant on something even if they can’t make the major charges stick. It also gives them something to bargain if the defendant offers something of value, they can let the defendant plead guilty to one of the lesser crimes.
Defenses
Defense #1: Kick Up Dust
Their first defense is what I think of as the “kick up dust” defense. This is where you hold the prosecution to the extraordinarily high standard of “beyond a reasonable doubt.”
The strategy is to introduce doubt. “Is this airtight? What about this alternative explanation? Are you SURE things didn’t just get carried away and their earlier statements were mere hyperbole?”
If you can introduce enough doubt you can get an acquittal.
Defense #2: You got the wrong guy
This is best used as mistaken identity. “Your honor, my client looks a lot like the guy who really robbed the bank and the police grabbed my client by mistake.” (To make this one effective, it’s best to be able to prove that your client was somewhere else at the time.)
The defense here seems to be taking the completely stupid approach that the guilty party is actually law enforcement and intelligence for failing to stop the insurrection.
Tarrio’s lawyer, Sabino Jauregui, tried a variation: He said his client was being used as a scapegoat by the government. He maintained that someone had to be blamed for the insurrection and Tarrio was the “easy target” rather than intelligence and law enforcement agencies, even though they had information about potential threats to the government on Jan. 6.
This is so stupid I can’t wrap my mind around it. “It’s not my client’s fault that the crowd did what my client told them to do. The real villain here is law enforcement and the government for failing to stop it.”
Defense #3: The Public Authority Defense
This one isn’t as stupid as it sounds, but I can’t see it working for the leaders and the planners. (It is not the same as the “I committed the crime because I was ordered to do so” defense. I’ll explain the distinction in a moment.)
Two years ago, on January 11, my friend (and top-notch defense lawyer, Mark Reichel) and I wrote this piece for The Washington Post arguing that for many of the attackers, the Public Authority Defense was their best (and possibly only) defense. (You can read the article as a gift through my subscription, here: https://wapo.st/3WkFHgK)
I’ll give you an example of how the defense can work.
In United States v. Tallmadge, a federally licensed gun dealer told the defendant that his circumstances fit into an exception to the prohibition against felons owning firearms.
The defendant relied on the dealer’s word and purchased the firearm. The court found that licensed firearm dealers are federal agents for the purpose of gathering and dispensing information about the purchase of firearms.
It was reasonable, therefore, for the defendant to rely on the dealer’s word. He was thus found not guilty.
You can see, though, why it might work for the guy buying a gun but not the guys storming the capitol.
The guy buying the gun could very well think that he was doing something legal.
Good luck persuading a jury that Tarrio and pals genuinely thought that storming the capitol was very legal and very cool.
This is different from the “I was following orders” defense because in the case of the gun buyer, the reliance on the public authority negated the mens rea (guilty mind) necessary to be convicted of a crime.
Just for fun, I’ll give you an example of how the “I had no choice” defense might work in practice:
“Yes, your honor, that is me in the film pointing the gun at the teller and flashing the note that says, ‘put all your money in this bag.’ And yes, that was me leaving the bank with all those other guys and the bag full of money. But what you can’t see in the video is that the real villain had a gun to my back. I was a captive with no choice but to go along.”
After reading summaries of the opening arguments, I had two thoughts at the same time:
- They were crazy to go to trial on these facts
- I guess you never know. They might win. It happens
Enrique Tarrio Goes to the White House:
On Thursday, two incidents were the focus of questioning. First, on December 12: Tarrio went to the White House. The meeting was public knowledge because Tarrio posted photos taken inside the White House gates on Parler. He also posted that he received a “last minute invite to an undisclosed location.”
On December 12, the White House said that he hadn’t been invited: The Trump White House spokesperson said he took a tour that was open to the public.
It’s been a long time, but didn’t Patty Hearst try the “I had no choice” defense? IIRC, it didn’t work because she was convicted.
Most defenses don’t work, to tell the truth. Federal prosecutors have better than a 95% conviction rate. They think it’s because they’re good. The defense thinks it’s because they have a huge advantage: The FBI as their own investigators and lots of ways to get evidence and apply pressure:)