Brandi Buchman for Daily Kos Liveblogs
Daily Kos Staff
Thursday January 19, 2023 · 5:28 AM PST
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The fifth day of the Proud Boys seditious conspiracy trial gets underway Thursday at 9 a.m.
UPDATE: Thursday, Jan 19, 2023 · 2:15:25 PM PST · Brandi Buchman
When Quested was cross-examined by Nick Smith, Smith pulled up footage of the filmmaker as he stood at the front of a bike rack on Jan. 6. It was a scene from one of the first breaches of the day. In it, Quested braced himself on the bike rack as the crowd jostled him and pushed him forward. As the crowd broke through, Quested positioned himself off to the side.
Smith said he wasn’t insinuating that Quested was part of the breach but wanted to note this exact moment because it was a moment that Quested told investigators didn’t seem “overly violent.”
In another clip, Nordean is seen standing in a thick crowd, his back to the Capitol while Quested films him. As the crowd pushes at the barrier, Nordean is turned and has his fist raised.
Previously, Quested had testified that Proud Boys would sometimes raise their hands in this way when walking with a group and that it would signify to others that they should “halt” or “stop.”
Cross-examination will resume on Friday.
Jurors were excused promptly at 5 p.m. on Thursday but once they left, it wasn’t long before Norm Pattis, the attorney for Joseph Biggs, raised a concern anew.
He was particularly miffed by Quested’s remark during testimony about the “OK” hand signal. Quested said the hand signal represented “white power.”
Ultimately, Quested’s comment was stricken from the record by Judge Kelly. Pattis felt this wasn’t sufficient but ultimately Kelly did not agree.
“The charges here, whether you want to use those words or not, the allegations here, are in some ways the closest thing we have to what we call domestic terrorism,” he said.
Kelly acknowledged he “wouldn’t go out of his way” to use that language but thought the way it was used here wasn’t prejudicial when measured against the seriousness of the charges.
”The charges amount to using force to oppose the government in a context, in a highly political context. So while I hear you on your concern about it, I actually don’t think – and I did strike it out of an abundance of caution …it was that prejudicial,” he said.
UPDATE: Thursday, Jan 19, 2023 · 1:09:19 PM PST · Brandi Buchman
Prosecutor Conor Mulroe says he expects there will be about 30 more minutes of direct questions for Nick Quested.
Judge Kelly says he will recess court at 5 p.m. today instead of the traditional 5:30 p.m. end time.
On Friday, court is expected to convene at 9 a.m. and end at noon.
I will not have a recap tonight but I will have a story on the first full week of trial (beyond jury selection!) on Friday.
UPDATE: Thursday, Jan 19, 2023 · 1:00:38 PM PST · Brandi Buchman
Testimony from the witness has finally landed on the events of Jan. 6.
When Quested arrived on the National Mall on the morning of the insurrection, he showed up a little after 10 a.m. and Proud Boys were already on the march towards the Capitol.
Quested said the mood among Proud Boys on Jan. 6 was not as jovial as it had been during rallies prior. It was more serious, he said, though he noted Proud Boys were still polite to him.
He estimated there were about 200 Proud Boys there and most were not wearing their typical black and gold garb but were wearing orange hats and all-black attire. The decision for Proud Boys to wear all black was announced by the group itself ahead of Jan. 6. They wanted to blend in with “antifa,” they said.
Quested filmed the Proud Boys as they marched and captured them chanting: “Proud of your boy,” “I’m a western chauvinist and I refuse to apologize for creating the modern world,” “1776” and “uhuru,” a Swahili word for freedom.
At the rally in December 2020, Quested told prosecutors he didn’t hear any Proud Boys chant “1776.”
In other footage, Quested filmed police officers putting on gear as people streaming past them screamed “treason” or “honor your oath” at them.
He estimated that at the site of the first breach, police officers were probably outnumbered 50-1.
“There was maybe a dozen police officers at the first line and you can see there are a couple hundred people at least at this point and more coming,” Quested said.
Other footage shows the Proud Boys breaching past barriers near the lower west end plaza and moving with their hands on one another’s shoulders.
This was not a formation that Quested recalled seeing when Proud Boys protested at rallies in November 2020 or December 2020.
When Oath Keepers breached the Capitol, they used a “stack formation” or resting a hand on the shoulder of the person in front of them so they could move uninterrupted through the crowd.
UPDATE: Thursday, Jan 19, 2023 · 11:43:44 AM PST · Brandi Buchman
The lunch break is over but jurors are not yet seated.
Judge Kelly is on the bench. In short: prosecutors reviewed video footage and found a separate angle that would support the inference that Tarrio would have been able to hear it when a person said “we have to do it strong, fast” during the garage meeting with Stewart Rhodes.
On balance, however, prosecutors said it wasn’t worth admitting because it could be viewed as hearsay.
On Quested’s testimony Thursday about the public letter Rhodes wrote urging Trump to invoke the Insurrection Act: Judge Kelly said he was inclined to strike Quested’s testimony from the record on that count.
Quested said he heard about the letter on the news. Unless he had that knowledge directly from Rhodes, it could be considered hearsay. If the government wanted to call a witness who could testify about the Oath Keepers, their purpose or conduct, they could do that and not rely on Quested.
Prosecutor Mulroe argued that the Rhodes letter was publicly reported and widely known but the inference wasn’t “critical in the government’s point of view.”
UPDATE: Thursday, Jan 19, 2023 · 10:12:27 AM PST · Brandi Buchman
From the witness stand, Nick Quested recounted how he began following the Proud Boys to film them and why — he was interested in documenting the rising divisions in America and their root causes.
“I was interested in how young men relate to each other in pressured situations,” Quested testified.
He first met Tarrio in December 2020. Quested met Tarrio face to face on Dec. 11, just a day before the Dec. 12 Million MAGA March. He documented the group as they attended multiple rallies for Trump that protested the outcome of the 2020 election.
Dec. 12 was a key day for Tarrio. That morning, he would go on what he described as a “public tour” of the White House. Quested said he requested to join Tarrio multiple times but the Proud Boy ringleader wouldn’t allow him to follow.
Several minutes of video footage were also shown to jurors, including clips Quested shot of Tarrio meeting with Oath Keeper founder Elmer Stewart Rhodes in an underground parking garage on the eve of the insurrection.
During that meeting, there’s a moment Quested captured where Tarrio’s voice is picked up as well as another male voice. According to prosecutors, the presently unidentified voice says, “it’s going to happen, we just have to do it strong and fast together.”
The clip was played for the judge and attorneys after jurors had left, but it was not played in the media room. (Standard when evidence is not yet officially admitted.)
The inclusion of this detail was objectionable to defense attorneys across the board and in particular, Carmen Hernandez and Norm Pattis. They represent Zachary Rehl and Joseph Biggs, respectively.
Pattis said that while earlier he didn’t object to including the video with the unidentified voice saying “it’s inevitable,” he now considered it particularly “menacing” in light of Quested’s testimony.
This is particularly offensive, Pattis argued, because Quested offered other testimony before jurors where he said he knew that Stewart Rhodes had publicly called on Trump to invoke the Insurrection Act so the results of the election could be overturned.
Nick Smith, an attorney for defendant Ethan Nordean, joined the objection and called for a mistrial, saying that during voir dire it was evident that some jurors knew Rhodes had been convicted of seditious conspiracy.
Despite Judge Kelly’s warnings about decorum in the courtroom earlier Thursday morning, when the possibility of the video coming into play started to firm up, there was an outbreak of motions for mistrial or motions to sever by defense attorneys.
Steven Metcalf, the defense attorney for Dominic Pezzola, said he would file a motion to sever if the video made it in.
Before a break was called for lunch, prosecutor Conor Mulroe said the government might be able to clear up who the speaker is in the video.
UPDATE: Thursday, Jan 19, 2023 · 8:04:12 AM PST · Brandi Buchman
Once Secret Service inspector Lanelle Hawa got on the stand, defense attorneys continued a rather tortured cross-examination, asking her several questions that she had previously answered or could not answer simply because she doesn’t have the personal knowledge to do so.
During cross-examination from Steven Metcalf, the attorney for Proud Boy Dominic Pezzola, Metcalf pressed Hawa about former Vice President Mike Pence’s movements on Jan. 6. and suggested that Pence was in transit naturally on Jan. 6 and not moved because of rioters. In effect, Metcalf argued, it was Pence’s functional duty to cross between the House and Senate buildings when objections were launched.
That much is true — it was his responsibility to lead the session and both the House and Senate would come together or recess before or after objections.
The first breach of the Capitol occurred between 12:57 p.m. and 1 p.m. Hawa testified that she first became aware that rioters had breached the building between 1-1:15 p.m.
Pence was already inside when the rioters started to get past barriers and access restricted grounds.
Metcalf grilled Hawa as his cross-examination came to a close and in a slightly bizarre moment, asked her why she didn’t do anything to stop former Vice President Mike Pence from coming to the Capitol on Jan. 6?
While much has been made by the defense about the exact perimeter that was in place around the Capitol, during redirect by prosecutor Nadia Moore, Hawa testified that rioters didn’t much care about any barriers that were in place. They set them aside, pushed them over, and in many cases, threw them.
UPDATE: Thursday, Jan 19, 2023 · 7:03:02 AM PST · Brandi Buchman
Another slow start today as attorneys spend roughly an hour arguing over exhibits in evidence. Nick Smith, a defense attorney for Proud Boy Ethan Nordean, objected to the government’s framing around Henry Tarrio’s arrest on Jan. 4, 2021. Smith argued that federal prosecutors improperly implied that the firearm magazines found in Tarrio’s luggage were intended for use on Jan. 6.
Judge Kelly didn’t agree and said the government did nothing improper. It will be up to the jury to decide what they make of Tarrio having the magazines on him just days before the 6th, he said.
There was also a lengthy back and forth this morning over Nick Quested’s anticipated testimony on Thursday. Defense counsel argued Quested’s recounting of his time around the Proud Boys was incomplete and that the Justice Department was being unfairly selective with the footage it will show to jurors. Smith claimed Quested has knowledge that Tarrio and members of the Proud Boys did not intend on stopping the certification.
Trial proceedings are underway now and U.S. District Judge Tim Kelly is on the bench. The government is expected to call British filmmaker Nick Quested to testify.
Quested followed the Proud Boys in the days and weeks before the insurrection but he also filmed them closely on the day of the attack as he worked on a documentary about divisions in America.