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Did DOJ botch their biggest Capitol riot case?

Daily News

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As members of the Proud Boys, a far-right group, appear in court on sedition charges following the January 6, 2021, riot at the U.S. Capitol, a number of issues have been brought up prompting some members to call for the trial to be dismissed.

On Thursday, an attorney for Ethan Nordean, one of the Proud Boys members charged in the riot, filed a motion alleging that “hidden” messages were found between government witness Special Agent Nicole Miller and another FBI agent. Miller previously testified in the trial and was required to provide the court with all digital messages related to her testimony. However, according to the court document, “a close examination of the agent’s sheet revealed over one thousand hidden Excel rows of messages.”

Additionally, lawyers for Proud Boys members—Enrique Tarrio, Joseph Biggs, Dominic Pezzola, and Zachary Rehl—have also filed motions arguing that recent surveillance footage of the January 6 riot released by Fox News host Tucker Carlson should result in a dismissal of the trial. Each of the members currently on trial have pleaded not guilty.

The trial involving the Proud Boys members is one of the biggest court cases for the Department of Justice (DOJ) following the riot. The Proud Boys members have been charged with seditious conspiracy to disrupt the transfer of power from former President Donald Trump to President Joe Biden, ultimately trying to overturn the results of the 2020 presidential election.

Proud Boys Members of the Proud Boys gather in front of the Oregon State Capitol building during a rally on January 8, 2022, in Salem, Oregon. As members of the Proud Boys appear in court on sedition charges following the January 6, 2021, riot at the U.S. Capitol, a number of issues have been brought up prompting some members to call for the trial to be dismissed. MATHIEU LEWIS-ROLLAND/AFP/Getty Images

Earlier this month, Carlson aired previously unseen surveillance footage of the Capitol on January 6, which he said showed the individuals who entered the building as “not insurrectionists,” but instead “sightseers.” House Speaker Kevin McCarthy granted Carlson access to more than 40,000 hours of security camera footage from the riot.

In one clip shown by Carlson, Jacob Chansley, the individual widely known as “QAnon Shaman,” was seen walking adjacent to several Capitol police officers, prompting the Fox News host to say that the officers “acted as his tour guides.”

Following the release of the footage, lawyers for Pezzola filed a motion calling for the trial to be dismissed.

“This footage is plainly exculpatory; as it establishes that the Senate chamber was never violently breached, and—in fact—was treated respectfully by January 6 protestors,” the motion said, according to Business Insider. “To the extent protestors entered the chamber, they did so under the supervision of Capitol Police. The Senators on January 6 could have continued proceedings.”

Despite the motion filed by Pezzola’s lawyers, some other legal experts have told Newsweek that the footage released by Carlson isn’t likely to change the outcome of the trial.

“Tucker Carlson’s footage will have no impact on these case. It’s a desperate attempt on the part of a defense team that has no real defense on the merits. There is no question that the January 6 riots were violent, resulting in property damage to the Capitol building and injuries to Capitol police officers,” former federal prosecutor and President of West Coast Trial Lawyers, Neama Rahmani told Newsweek. “This ‘Hail Mary’ argument will fail.

Similarly, Michael McAuliffe, a former federal prosecutor and elected state attorney, told Newsweek that the defense motion is “beyond meritless.”

“The tapes are of no value or relevance to what Dominic Pezzola did at the Capitol during the insurrection or with whom he conspired in an effort to achieve violent, unlawful goals culminating on January 6th. The motion is likely meant to placate or appeal to an audience, but that audience isn’t the judge,” McAuliffe said.

In addition to the “hidden” messages and Carlson tapes, lawyers for the Proud Boys members also recently argued that there was a violation of their 6th Amendment rights relating to FBI agents allegedly accessing communications between one of the defendants and their own attorney.

“Finally, Nordean must be permitted to cross-examine Miller with the hidden Lync messages to determine whether defendants’ Sixth Amendment rights have been violated through government collection of attorney-client communications about trial strategy,” Nordean’s attorney, Nicholas Smith, said in the court filing.

According to journalist Roger Parloff on Twitter, this issue was brought up on Thursday, which prompted U.S. District Court Judge Tim Kelly to say that “it went from a 5-alarm fire to maybe a 1-alarm fire.”

Meanwhile, a spokesperson for the U.S. Attorney’s Office in Washington D.C. told Newsweek that they plan to respond to these issues in court.

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