Three months after the riot, a 2 p.m. hearing before U.S. District Judge Timothy J. Kelly in Washington will pose a key showdown over prosecutors’ claims about some of their members.
Prosecutors are making their first attempt to detain Joseph Randall Biggs, 37, of Ormond Beach, Fla., an Army veteran and self-made online “thought leader” for the Proud Boys, a far-right group with a history of violence. Investigators have identified Biggs as an organizer of a group wearing tactical gear that is accused of some of the earliest and most aggressive efforts to charge police lines and then break into the building.
Prosecutors have also moved to revoke the pretrial release of Ethan Nordean, 30, of Seattle. Another judge freed Nordean on March 3 after finding that although he appeared to be another key leader of the Proud Boys who raised money, gear and recruits for a “1776”-style revolt, evidence was lacking that he directly ordered the attack.
Another judge has asked for an update Tuesday afternoon in a case involving 12 indicted members and associates of the Oath Keepers, a network of groups founded in 2009 on the premise that the federal government is evolving toward dictatorship. Over 10 percent of the more than 350 charged in the riot are members or associates of the Proud Boys or Oath Keepers.
Prosecutors sought the hearing for Nordean and Biggs after obtaining a new six-count indictment accusing them and two other leaders — Charles Donohoe, 33, of Winston-Salem, N.C., and Zach Rehl, 35, of Philadelphia — of conspiring to disrupt Congress’s joint session and impede police. Prosecutors allege the four were leading more than 60 others who communicated in encrypted chats about “storming the Capitol” and hiding their tracks to avoid criminal gang charges before and after they converged at the U.S. Capitol, joining a pro-Trump mob to topple barricades and rush police.
A three-judge appeals court panel raised the bar last month for detaining nonviolent Capitol defendants, requiring judges to specify why those detained posed a risk of dangerousness or if they “aided, conspired with, planned, or coordinated such actions.”
In response, Assistant U.S. Attorney Jason McCullough argued in court filings that the more serious charges and new evidence establish that Nordean believes he is “charged with restoring the ‘spirit of 1776,’ ” and that violence is justified because “he is saving the republic.”
“The identified and articulable threat posed by the defendant is rooted in his belief that his acts of defiance against law enforcement and the lawful functions of government make him a patriot,” McCullough wrote.
Biggs removed metal barricades and forcibly entered the Capitol twice — reaching the Senate chamber where then-Vice President Mike Pence had been presiding — after planning extensively with Nordean and others on Jan. 5, McCullough wrote. Biggs also posted online on Jan. 1 that “2021 is the year we take back America,” that Pence would “betray” then-President Donald Trump, and that “we need to cast out every Backstabbing republican,” McCullough wrote.
“There can be no adequate safeguard against [Biggs’s] ability to mobilize his men in support of a new unlawful objective,” the prosecutor claimed.
Biggs’s attorney, John Daniel Hull, asserted that Biggs has complied with all conditions since the government declined to object to his home release on Jan. 20, that no new information justifying his jailing has emerged, and that FBI agents in Florida in July asked him to share what he was learning through his efforts to oppose far-left antifa activists.
Nordean’s defense argued that belying any plan to storm the Capitol, he had arranged for a musician to play at the Airbnb where he was staying in Washington on the afternoon of Jan. 6.
Nordean’s attorney, David B. Smith, and Hull argued that the Proud Boys were only planning to protect Trump supporters after street fights erupted during demonstrations in Washington and other cities last year, not to criminally invade the Capitol.
“Unless it is claimed that the defendants had a plan to topple the world’s most powerful government in approximately one hour or less (without any weapons), immediately leave the scene without any law enforcement concern, and then throw a carefree music party blocks from the scene of the world-historical crime, both of these contentions cannot be true,” Smith wrote.
On encrypted Telegram message groups set up for Jan. 6 in Washington titled “Boots on the Ground” and “New MOSD” — which prosecutors said they believed stands for “ministry of self-defense” — some Proud Boys participants expressed surprise at the breach and resulting evacuation of Congress, Smith said.
“Ummm I don’t think the plan was to attack, damage, and attempt to control government building,” one of the comments said, according to court filings from Smith.
This “was NOT what I expected to happen today . . All from us showing up and starting some chants and getting the normies all riled up,” another wrote, according to Smith.
Prosecutors dismissed those claims, saying the organized presence of the Proud Boys and their plans to confront police led directly to the crisis.
“The manner and means of the charged conspiracy included storming the Capitol and thus obstructing the proceedings inside,” McCullough wrote.
That Nordean considered a live music event at 4 p.m. “does not refute the existence of a criminal conspiracy to disrupt the proceedings at the Capitol” and preparations for “violent confrontation.”
Prosecutors said that for days beforehand, Biggs and Proud Boys Chairman Henry “Enrique” Tarrio mobilized a large turnout of Proud Boys dressed “incognito” to blend into the Washington crowd on Jan. 6.
Nordean also communicated online to obtain tactical vests, armored plates, bear spray and donations for “protective gear and communications,” prosecutors said.
On Jan. 4 and 5, the four co-defendants, Tarrio and a handful of others coordinated on the MOSD group, explicitly instructing the wider group on the ground in Washington to disavow “planning of any sorts,” and not be “typing plans to commit felonies into your phone,” according to court filings.
The writer of the last message, who prosecutors identified only as unindicted co-conspirator 1, or UCC-1, allegedly added the morning of Jan. 6, “I want to see thousands of normies burn that city to ash today,” and, “The state is the enemy of the people.”
Two others allegedly replied, “It’s going to happen. These normiecons have no adrenaline control. … They are like a pack of wild dogs,” referring to ordinary Trump supporters.
Prosecutors said UCC-1 and one of the others in the chat were not at the Capitol but indicated they were monitoring it remotely using live streams and other methods. As members surged forward, UCC-1 allegedly wrote, “Storming the capital building right now!!” and “Push inside,” which the government claimed reflected that leaders understood the plan to include “storming the Capitol grounds.”
Prosecutors said video of the group outside the Capitol before the assault showed members expressing similar intent. People were screaming about taking the Capitol when one person said “Idiot” and “Don’t say it, do it,” according to court documents.
“We’ve just taken the Capitol,” Biggs allegedly announced on a video he took after a mob led by Proud Boys members overwhelmed police to reach the Capitol’s West Front shortly after 1 p.m.
There, a charged Proud Boys member allegedly deployed bear-spray gel at a “weak point” in police lines defending a stairway on the northern end of the West Terrace, prosecutors have said.
Within nine minutes, the mob broke through, with another charged Proud Boys member using an officer’s riot shield at 2:13 p.m. to smash in a Capitol window, allowing Biggs and others to rush into the building near Pence as he was being led to safety, prosecutors said.
“We stormed the capitol unarmed and we took it over unarmed,” the indictment alleges Donohoe later posted.