Another week has passed in the Proud Boys' seditious conspiracy trial and on the oft-delayed path to a verdict, another fraught round of proceedings ended this week with an attempt by the defense to issue a subpoena to none other than former President Donald Trump.
It is a long-shot bid like others made in this case ,but no matter: Defense attorneys want the twice-impeached single-term president to appear before the jury in Washington, D.C.
It is not yet clear whether presiding U.S. District Judge Timothy Kelly will allow the subpoena to be issued, though it seems unlikely. Other Jan. 6 defendants have tried and failed with judges rendering the requests moot, but this time, it’s different, according to the Proud Boys.
A key contentious element at the heart of the Proud Boys seditious conspiracy trial of Henry Tarrio, Ethan Nordean, Joseph Biggs, Zachary Rehl, and Dominic Pezzola is what the prosecution has deemed the “tools of the conspiracy.”
For the government, the “tools” are defined in two ways. First, there are people who the defendants relied on as their co-conspirators or cooperators when they marched on the Capitol and second, there are those people who the defendants and their co-conspirators handpicked to join a special chapter of the Proud Boys known as the Ministry of Self Defense to stop the certification. (Marcy Wheeler of emptywheel explains the theory here with a transcript of Judge Kelly’s ruling on the matter.)
Outside the presence of jurors, defense attorneys argued this week that the subpoena for Trump has never been more appropriate because of this “tools” theory. It goes to the heart of their claims that it was Trump who incited his supporters to “stop the steal” and it is Trump who turned Proud Boys and others into his “scapegoat” as a result.
It is a long shot that seems laughable considering the accountability for the Jan. 6 insurrection that Trump has so far skirted.
But it’s not altogether impossible.
Judge Kelly will weigh the request and it is unclear as of Thursday how long it will take him to render a decision. Unlike other Jan. 6 criminal trials, be they bench or jury, judges have rebuffed requests to subpoena Trump because a high enough bar could not be reached. But in this matter, there is at least one clear, probative tie between the former president and the defendants: Trump addressed Proud Boys directly when he told them to ‘stand back and stand by’ in September 2020 during a presidential debate.
Jurors have seen a slew of the defendants’ communications in recent weeks around that particular moment on the road to Jan. 6 and prosecutors have also pored over Proud Boys communications from encrypted channels where members and leadership, including some of the defendants, expressed elation that Trump had addressed them.
RELATED STORY: ‘Jubilation’ when Trump called their name: Sedition trial starts to crack apart Proud Boys texts
It is unclear if the government will be willing to serve Trump a subpoena for this case. It is up to Kelly to approve the request but it will be up to the government to enforce it. The government has not laid blame on Trump but has focused its energy only on the actual charges against Tarrio, Nordean, Biggs, Rehl, and Pezzola.
It was they who allegedly conspired to stop the transfer of presidential power by force. It was they who allegedly conspired to obstruct Congress. It was they who allegedly attempted to stop police from performing their duties at the Capitol. And for some of the defendants, like Dominic Pezzola, it was he, the government alleges, not Trump, who stole a police riot shield and used it to smash apart a window at the Capitol before crawling through it and letting a stream of rioters in behind him.
What happens next likely won’t be determined until next week or later. The issue only came up on Thursday because Judge Kelly had to excuse jurors for the day after a juror had fallen ill. The court does not sit on Friday and in observance of Presidents Day, it will not sit on Monday, Feb. 20, either.
Tuesday of next week, however, may finally feature testimony from Jeremy Bertino, the first and only publicly known Proud Boy to plead guilty to seditious conspiracy.
Tarrio’s communications with D.C. police lieutenant
This week, questions over confidential human sources and informants—and there is a difference—dominated the jury’s attention as evidence involving Tarrio’s Telegram chats with D.C. Police Lieutenant Shane Lamond began to emerge.
Lamond is under investigation for interactions he had with the former ringleader of the Proud Boys. He was suspended without pay. He has not been charged with any wrongdoing as a probe into his conduct remains active.
And in fact, it is not the 20-year veteran of the police force who is on trial.
It is Tarrio.
On Wednesday, by way of testimony from FBI Special Agent Peter Dubrowski—who has been on the stand for several days—jurors learned how Tarrio, from July 2020 to January 2021 had frequent contact with Lamond. Though it is not unusual for a police officer to tap a confidential source for valuable insights, when Dubrowski came under direct examination by prosecutor Conor Mulroe, he testified that of the messages between Tarrio and Lamond that he read, and when taken in conjunction with other Telegram messages Tarrio shared with his co-defendants now on trial, it appeared to him that this was a most atypical situation.
RELATED STORY: Proud Boys private talks aired out this week in court; shape of alleged conspiracy emerges for jury
In November 2020, once it was declared that now-President Joe Biden had defeated former President Donald Trump, Lamond sent Tarrio information about alerts that had been issued by law enforcement pertaining to Tarrio’s “people.”
“Need to switch to encrypted. Alerts are being sent out to LE [law enforcement] that Parler accounts belonging to your people are talking about mobilizing and ‘taking back the country.’ Getting people spun up. Just giving you a heads up,” Lamond wrote.
Later, after Tarrio and members of the Proud Boys had clashed with counterprotesters, texts displayed to jurors this week appear to show Lamond passing information to Tarrio about police locking up “one of your guys” and then later telling him “we cut your guy loose.”
“Victim could not be located,” Lamond said of a counterprotester.
“Is this normal for law enforcement to tell a source?” prosecutor Conor Mulroe asked Agent Dubrowski on Wednesday.
“No,” he replied.
As Mulroe went through the texts with Dubrowski, objections abounded from every defendant. Judge Kelly overruled nearly all.
Tarrio and his attorneys have argued for months that the Justice Department has precluded Lamond from testifying at the seditious conspiracy trial on purpose. In pretrial motions, Tarrio’s legal team said it was “curious” that the government had not yet ended its probe into Lamond as Tarrio’s time before a jury approached.
Lamond has already communicated to the Justice Department and the defense that should he be asked to testify, he will invoke his Fifth Amendment right against self-incrimination.
In a ruling from January, U.S. District Judge Timothy Kelly wrote that the Proud Boys leader offered “no evidence” to support his claims of impropriety by the prosecution, and that included zero evidence of “threats, harassment, intimidation or other misconduct” against Lamond that would stop him from speaking out.
Kelly, a Trump-appointed judge reminded too that it is ultimately Lamond’s right not to speak and no inappropriate inference should be drawn by that decision.
This hasn’t sat well with Tarrio’s legal team. This week, Tarrio’s attorney, Sabino Jauregui, renewed the fight again. When the government had Dubrowki testify to 18 pages of texts between Lamond and Tarrio, Jauregui argued that the government’s questioning had smeared Lamond.
“They have dragged his name through the mud,” the defense attorney said.
It was Jauregui who introduced the records ultimately, however, and this is because, he argues, there are exculpatory details in other communications from the same periods.
The communications between Tarrio and the D.C. police lieutenant that he wants to show prove Tarrio was “useful” to law enforcement, he said.
As Jan. 6 approached, their chats about the Proud Boys’ plans to attend rallies and the like were also sent up the chain of command by Lamond to senior-ranking intelligence officials at other law enforcement agencies including the U.S. Capitol Police, Jauregui said.
Notably, when Tarrio testified to the Select Committee to Investigate the Attack on the U.S. Capitol last February, he told congressional investigators he “coordinated with the Metropolitan Police Department” about Proud Boys’ plans for various protests and discussed ways to keep members of his organization away from “counterprotesters” if they were in town on the same day.
Then, Tarrio said, he “left it at that.”
Tarrio, it should be noted, did not mention Lamond by name once when he went before the select committee.
Jauregui also said texts he wants to introduce show how Lamond and Jack Donohue, the director of the U.S. Capitol Police Department’s intelligence unit, utilized the “tips” that Tarrio provided.
These messages, he claims, were also sent to Metropolitan Police Department assistant chief Jeffrey Carroll.
For now, the only messages between Tarrio and Lamond that jurors have seen seem to strongly indicate that among the men, there was a great imbalance of information and that imbalance seemed to favor Tarrio more often than not.
Was it normal for a member of law enforcement to share information about investigations, sanctions, or arrests?
Agent Dubrowski said he had “never heard of it.”
Long before Tarrio was arrested on Jan. 4, 2021, for burning a stolen Black Lives Matter flag on Dec. 12, 2020, in Washington, D.C., Lamond had tipped the Proud Boy ringleader that fellow officers of the Criminal Investigation Department, or CID, were weighing whether to submit a warrant for his arrest to the U.S. Attorney’s Office.
Lamond told Tarrio too how he described the Proud Boys to fellow officers when asked what he knew about the group. The group has a long and well-documented public history of violence and clashing and its associations with extremists and white nationalists are well-reported. The Proud Boys have consistently denied that labeling and insist they are only “western chauvinists.”
“I’ve been talking to CID about it. They wanted to know what I know about your group and if I think you are all racist. I told them you are made up of a lot of Latinos and Blacks so not a racist thing.”
When Tarrio would later ask the police lieutenant if the burning of the flag would be considered a hate crime, Lamond volunteered: “It’s not being investigated by FBI though. Just us (MPD).” [Paranthetical original]
Separate Telegram messages among Proud Boys, including the defendants now on trial, showed Tarrio telling organization leadership that “we got the jump on the narrative for the banner burning.”
“This should make it next to impossible for them to use the hate crime enhancement,” Tarrio wrote.
Lamond and Tarrio had been talking for at least six months by that point.
Prior to Tarrio’s burning of the Black Lives Matter banner, jurors saw evidence as well of Lamond offering Tarrio warnings about potential crackdowns by a local alcohol regulatory agency targeting Harry’s, a D.C. bar and reported Proud Boys hangout.
Other messages show Lamond telling Tarrio that the FBI and U.S. Secret Service got “spun up” over Tarrio’s remarks on Alex Jones’ show, InfoWars.
“Also — you’ve got the FBI and [U.S. Secret Service] all spun up over what was said on InfoWars the other night about PB dressing up as Biden supporters on Inauguration Day. Got an email first thing this morning,” Lamond wrote.
In line next to the message, Lamond included an emoji featuring a shocked face.
When Tarrio visited the White House in December 2020 and posted about it online before the Million MAGA March, Lamond wrote: “An invite to the White House?” and included a thumbs-up emoji.
Records show Lamond and Tarrio shared phone calls as well though they were short-lived. The men would meet up for drinks to discuss things that Lamond felt were “too complicated for a text.”
In documentary footage of Tarrio meeting with Oath Keeper leader Stewart Rhodes, Tarrio indicated that he knew he would be arrested. Lamond’s attorney insists his client never assisted Tarrio in any way nor did he help facilitate what happened on Jan. 6.
D.C. Police Lieutenant Shane Lamond and Henry “Enrique” Tarrio communications, July 2020-Dec. 30, 2020
Lamond_Tarrio Comms July 20... by Daily Kos
D.C. Police Lieutenant Shane Lamond and Henry “Enrique” Tarrio communications, Dec. 18, 2020- Jan. 4, 2020
Lamond_Tarrio Comms Decembe... by Daily Kos
Key witness ahead
Once court resumes next week, it is expected that Tarrio’s attorney will finish up his re-cross of Agent Dubrowski as it was left unfinished on Wednesday. But once that is over, prosecutors have said that they will call Jeremy Bertino, a former leader of the North Carolina Proud Boys who pleaded guilty to seditious conspiracy in October.
RELATED: Proud Boy pleads guilty to seditious conspiracy
Bertino has been cooperating with the government for several months and so far, he is the only Proud Boy publicly known to have pleaded guilty to the most severe charge leveled against Jan. 6 defendants.
Prosecutors argue that Bertino is integral to the alleged conspiracy by the extremist group to stop the transfer of power and further, they say, where Tarrio and his cohorts on trial now have argued that there was never an explicit plan in place, there is evidence that tells another story.
On Thursday, the Justice Department pushed to have evidence of Bertino’s remarks about Ashli Babbitt included. Babbitt was shot and killed by a U.S. Capitol Police officer when she refused to obey orders and attempted to push her way through a window leading to the floor of the House of Representatives.
“We failed,” Bertino wrote just after 6 PM on Jan. 6. “The House is meeting again. That woman died for nothing.”
Prosecutors also want to introduce a clip from a podcast where Bertino said the nation had “lost a great patriot” after Babbitt, a military veteran, had been shot.
On the podcast, Bertino remarked that “we were coming to storm the floor” so they could tell lawmakers they shouldn’t certify the election.
“They fucking escalated,” Bertino, who also goes by the handle NobleBeard in Proud Boys chats, said.