Domestic Terrorists: Convicted

The open question after Thursday’s verdict in the Proud Boys case is whether DOJ will be able to establish a connection between the convicted defendants and anyone who was in Trump’s orbit in the run-up to January 6. It’s important to understand that it’s unlikely to be a direct connection straight to Trump, based on what is publicly known. But there are other players involved, and a key point to remember is that we don’t know what other evidence DOJ has. It’s possible that it’s nothing more than what’s publicly known. Or it could be a lot better. There could also be some problem evidence that has come to light, items that could rule out an agreement to join a conspiracy, for instance.

That’s to say, there are a fair number of known unknowns at this point. But here’s what you might try to do if you were a prosecutor in this post-verdict moment:

The seditious conspiracy charge requires proof that a defendant joined a conspiracy that had the goal of using force to interfere with the government. In other words, if you were evaluating whether Trump could be brought into the Proud Boys conspiracy, it’s not what the Proud Boys heard when Trump infamously told them to “stand by” that matters—it’s what he intended. While there is speculation he was pleased by the violence, and he certainly spent hours doing nothing to stop it, publicly, there doesn’t seem to be proof beyond a reasonable doubt that he intended to work with them to use force to interfere with Congress’s work.

But you don’t have to go straight from the Proud Boys to Trump; in fact, it’s highly unlikely a case would work like that. Trump, like most bosses at the top of an org chart, works through intermediaries. Those are the people the special counsel is probably focused on—people in the “war rooms” at the Willard Hotel or people known to associate with Proud Boys leaders. Prosecutors don’t decide what crimes they think were committed and then go looking for evidence to confirm their suspicions, at least not good ones. They investigate to learn what the facts are and they follow them to see what crimes may have been committed. That’s the process we can expect is ongoing here.

Building a case by working up the chain like this can be frustrating and time-consuming. You can’t do anything until a defendant is ready to cooperate or you’ll get only half-truths or what defendants think you want to hear—you would end up with a nothing of a case. Even when a defendant is ready, there’s still a process of corroborating their testimony to establish whether they’re telling the truth, not just trying to get a sweetheart deal at sentencing. And their information has to be worth something. That means it has to be admissible in court and useful towards establishing elements of the charge(s) that will be brought against the guy who’s next higher up on the food chain. Prosecutors will be searching for connective tissue, if it exists, between today’s defendants, the Proud Boys, and the possible subjects for a next round of cases. No connection, no conspiracy.

Or at least, no seditious conspiracy. But that’s not the only option at prosecutors’ disposal. The Proud Boys case also included an obstruction of government proceedings charge, based on interference with the certification of the electoral college vote. That kind of charge has always seemed more probable where Trump was concerned, particularly as the evidence mounted that he knew he lost the election, and knew that the “fake slates of electors/get Mike Pence on board” strategy wasn’t lawful. Trump was surrounded by a band of people who appear to have been working together to obstruct result of the election. It’s unlikely the Proud Boys would have any insight into that conspiracy, but it’s possible, perhaps likely, they could implicate people who were working with them but who were also part of a separate conspiracy involving that inner circle conduct. For instance, NYU Law Professor Ryan Goodman suggested this possibility:

Or the so-called war rooms at the Willard ahead of January 6—why call them war rooms if you’re not planning on having a fight? Trump had already lost the election. If Tarrio or his co-defendants link people in the war rooms to their plans on January 6, they could be prosecuted on the same theory used against Tarrio and his co-conspirators, that they were criminally liable for using rioters who came to the Capitol that day as tools to commit violence they were intent on setting in motion. That theory could support the prosecution of people who, like Tarrio, weren’t physically present at the Capitol on January 6 but were similarly involved in planning and encouraging the action. While Roger Stone, Ali Alexander, and Alex Jones have all denied wrongdoing, and none of them have been charged in connection with the insurrection so far, their presence in Washington and at the Willard, along with many of their public statements would give prosecutors predication to explore their connections. If the evidence supported it, prosecutions against them could be leverage for cooperation that could take prosecutors closer to those most responsible for what Trump put the country through.

Possibilities like this—as full of complexities and uncertainties as they are—explain at a cellular level why prosecutors like to work up the chain of responsibility in complicated criminal conspiracies. It’s one way they can make sure they uncover the full range of conduct and are ultimately able to hold those who are most culpable accountable.

But it does take time, which is increasingly in short supply after DOJ’s apparent slow start. It’s a frustrating process. It’s slow. That’s democracy. It protects the rights of the accused. Although it has been protecting Donald Trump too, that’s the way it has to be. Because if Trump forces us to abandon democratic principles to hold him accountable, he’s won. So prosecutors must operate within the rule of law, while being smart and following all of the available leads. Today’s verdicts give them more opportunities to explore.

While a loss in the Proud Boys case might have defused some of the impetus for higher-level prosecutions at DOJ, a win doesn’t guarantee them. But there’s little doubt it will have the subtle effect of encouraging the special counsel to move forward. The Proud Boys and earlier defendants from the Oath Keepers group who have been convicted of seditious conspiracy weren’t the people who were most responsible for the insurrection. Today’s victory will be a hollow one, and history will certainly judge it as inadequate, if DOJ doesn’t proceed to hold the people at the top accountable.

So, we wait and see whether Tarrio or any of the others have information to share with investigators on Roger Stone or anyone else who was there with him in and around the Willard Hotel. Stone, with his strongly expressed views about avoiding any time in prison during his earlier prosecution (before Trump commuted his sentence), and his long-term connections to Trump, might be the place prosecutors would want to focus their attention. Now would be the time. Tarrio faces a 20-year maximum sentence just on the seditious conspiracy charge, although to be fair, the guideline range is likely to be a little lower. With that sort of post-conviction incentive to cooperate and five convicted defendants, things could get interesting fast.

It has been a couple of insanely busy weeks, and because I believe in rewarding ourselves when we work hard (and also because spring in Alabama is a short-lived phenomenon), I’ve been getting as much work done as possible from my alternative office space.

There has been a lot of help.

I am super-grateful for all the reminders of why the work we do to preserve democracy is so very important, even when it seems like a long road and we’re tired. Ultimately, it’s all about making sure that we and our children and our communities can live happy lives and fulfill the promise that only comes when our basic rights are honored. The Constitution isn’t just empty words; it is full of essential ones. It’s worth going through all of this to keep it that way.

We’re in this together,

Joyce