The conspiracy, Mulroe explained, can be “unspoken, implicit, a mutual understanding, or a wink and a nod”—a laughably broad definition for an offense akin to treason.
Even with that low bar, prosecutors struggled to put the pieces together, instead arguing that inflammatory political rhetoric expressed on private platforms represented legitimate threats of violence. No one brought a weapon to the Capitol on January 6; how can individuals overthrow the government without artillery?
Further, the defendants were seen at different locations outside and inside the building that afternoon. Enrique Tarrio, who had been arrested upon his arrival in D.C. on January 4 for his involvement in a clash with BLM rioters the month before, was in a Baltimore hotel room on January 6, following orders to leave the city after his release.
“It’s fairy dust,” Steven Metcalf, Pezzola’s attorney, told the jury Tuesday morning. Pezzola is charged with using a riot shield to punch out a window pane that day. Metcalf asked how a “transfer of brain power” between men who didn’t really know each other resulted in a near-coup on January 6.
The government’s case, Nordean’s defense attorney Nicholas Smith told the jury, was held together by “paper clips and rubber bands.” He warned that any convictions on the conspiracy counts would set a grave precedent. “Is every riot a conspiracy? This is very dangerous.”
Carmen Hernandez, who recently joked in court that she was not an FBI informant after the government dropped yet another late disclosure related to an additional confidential human source, blasted prosecutors for waiting until the final days of the trial to accuse her client, Zachary Rehl, of attacking police with pepper spray. Prosecutors showed a grainy, inconclusive clip to Rehl when he testified on his own behalf last week, purporting to show Rehl aiming a pepper spray device toward a line of officers. (Pezzola also took the stand on his own behalf.)
“Really? Really?” Hernandez said of the last-minute dirty trick. “There is no witness, no officer [testimony], no other video” that shows Rehl using spray. (Also, as of now, he is not charged with assault on an officer.)
But, of course, all government shenanigans are
condoned in the courtroom of Judge Timothy J. Kelly. The Trump appointee and former Justice Department lawyer has acted as an extra prosecutor, giving the government near
carte blanche discretion in this case. Nearly every ruling leading up to the trial favored the prosecution.
He repeatedly denied the defendants’ release from jail at the Justice Department’s request. As evidence mounted that Trump supporters cannot get a fair trial in the most Democratic city in the country, Kelly refused to move the trial to another jurisdiction.
When the Justice Department belatedly disclosed the existence of multiple FBI informants—the government stipulated that the bureau had at least eight—in the Proud Boys, Kelly ordered the defense to “pre-clear” any questions about the role of individual informants with prosecutors. He also refused to compel the testimony of a key FBI informant who worked as Tarrio’s driver.
Kelly also ran interference for FBI agents. A member of the defense team uncovered explosive messages exchanged between FBI case agents that discussed doctored reports, destroyed evidence, and violations of attorney-client privilege. But Kelly abruptly ended defense questioning of the FBI agent, dismissed the jury, and gave prosecutors time to make up an excuse for the damning communications.
Which, of course, they did. And despite the government’s unsubstantiated claims as to the nature of the messages, Kelly bought it hook, line, and sinker. The jury never saw the incriminating messages.
During the trial, Kelly expressed open hostility to defense attorneys, frequently overruling their objections while sustaining those made by prosecutors. Kelly seated a politically biased jury that prompted Parloff, no right-winger, to
express skepticism about the panel’s impartiality.
A marathon January 6 trial besieged by scandal, controversy, and acrimony is now in the hands of a Washington, D.C. jury. After nearly four months of back and forth, the government and defense…
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