Trial to begin Monday for ex-Proud Boys leader Enrique Tarrio. Will he testify?

In the uneasy days before Congress met in January 2021 to certify the presidential election, Enrique Tarrio and other senior members of the Proud Boys plotted a rebellion at the U.S. Capitol building to stop the lawful transfer of power from Donald Trump to Joe Biden, federal authorities say.

Tarrio, the Miami-based leader of the white nationalist group, and his colleagues set up a Ministry of Self Defense and exchanged hundreds of encrypted text messages about their “1776 Returns” plan to “storm the Capitol” and ring in the new year with a “revolution,” according to an indictment.

Nearly two years after the Jan. 6 attack on the Capitol building, Tarrio and four other senior members of the Proud Boys will stand trial on Monday in federal court in Washington, D.C., on charges of a conspiring to commit sedition, conspiring to obstruct an official proceeding and related offenses. The trial will begin as a House committee convenes Monday to discuss its final report on the Jan. 6 insurrection and consider criminal referrals against Trump and his top allies in an alleged plot to overturn the 2020 election.

The Proud Boys’ words, perhaps more so than their actions, will form the crux of the high-profile trial as jurors decide whether Tarrio and the others “intended” to use “force” in a concerted effort to stop Biden’s replacement of Trump in the White House — a finding that must be made to convict them of sedition. To that end, however, it is not necessary for prosecutors to show that the Proud Boys themselves actually used force, only that their verbal threats incited violence at the Capitol.

“This was a crime that was carried out by Mr. Tarrio and his co-conspirators that struck at the heart of our democracy,” prosecutor Jason McCullough said during Tarrio’s detention hearing in Miami federal court after his arrest last March. He called the insurrection a “crime of terrorism.”

Tarrio’s Miami defense attorney, Nayib Hassan, declined to comment on the allegations against the 38-year-old former chairman of the Proud Boys, who had worked in a Miami T-shirt shop before his arrest and detention before trial.

“Mr. Tarrio is looking forward to the start of the trial,” Hassan said in a statement provided to the Miami Herald on Wednesday. “We look forward to making our presentation of the evidence and acquitting Mr. Tarrio of the government’s allegations.”

But a hint of Tarrio’s defense surfaced at his detention hearing last March, when Hassan pointed that he was not present at the Capitol on the day of the insurrection and then asserted: “At no point in time did Mr. Tarrio instruct anybody to go into the Capitol building.”

U.S. District Judge Timothy J. Kelly, who is presiding over the Proud Boys’ trial, denied two defense motions to dismiss the case based on First Amendment arguments of free speech, underscoring the prosecution’s evidence on both the seditious and obstruction conspiracy charges.

Legal experts said the six-week trial, which starts Monday with jury-selection, will boil down to the Proud Boys’ words, their meaning and the eventual consequences.

“The defense will say that they didn’t use force, that this was advocacy and protest” protected under the First Amendment of the Constitution, said Miami defense attorney David Weinstein, a former chief of the national security section at the U.S. Attorney’s Office in South Florida. He is not involved in the Proud Boys’ case.

However, prosecutors will focus on the result of the Proud Boys’ threatening words that they say led to the destruction of government property in the Capitol building and the deaths of several people during the insurrection. Prosecutors will highlight that “their actions amplified the words that they were speaking” in encrypted text messages, Weinstein said, adding that they will show jurors photos and videos of the violence between rioters and law enforcement on Jan. 6.

For Tarrio himself, there will be another factor for jurors to consider: Although his text messages show he was directing fellow members to attack the Capitol before and on Jan. 6, he had left Washington, D.C., the previous day. A judge had ordered him to leave the city as part of his bail on an unrelated charge from a previous Proud Boys’ event supporting Trump after the election.

Tarrio was watching the Jan. 6 insurrection on television in a Baltimore hotel room, while thousands of Trump supporters known for their far-right politics attended the president’s “Stop the Steal” speech on the National Mall that afternoon and then breached the Capitol and ransacked the building, leading to the deaths of seven people in connection with the Jan. 6 attack, according to a Senate report.

But while Tarrio may not have been at the Capitol on the day of the insurrection, the jurors may still find that he was a leader of the conspiracy to attack the building and stop Congress’ vote on the presidential election, according to legal experts.

“The problem he has is that while he may not have been present on January 6, if he is in the conspiracy he doesn’t need to be present for every act,” according to Joseph DeMaria, a defense lawyer who worked in the Justice Department’s organized crime task force in Miami.

“The indictment reflects his agreement to join a conspiracy, especially in December [2020], when he created the new chapter of the Proud Boys called the Ministry of Self Defense (MOSD) and solicited members,” DeMaria said. “By the end of December he was talking about the MOSD making a trip to D.C. for January 6. He described what sounds like an organized military structure. The messages are about occupying the Capitol building. He said it would be a completely different operation, not a night march flexing muscles.

“He used the words ‘War’ and ‘Revolution,’ " DeMaria said, “and he used the word ‘storm’ referring to the Capitol. The main operating theater would be out in front of Congress. That seems like compelling evidence that they crossed the line from mere speech.”

DeMaria and other lawyers uninvolved in the Proud Boys’ case said Tarrio may have a “withdrawal-from-the-conspiracy” argument, noting that he left Washington the day before the Jan. 6 breach of the Capitol. But, to prevail on that defense, Tarrio would have to take the witness stand, abandon the Proud Boys and “turn on his own movement,” DeMaria said.

Tarrio’s lawyer, Hassan, declined to say whether he would testify at his trial.

For Tarrio, much is at stake, especially because has a federal criminal history in Miami. In 2013, he pleaded guilty in a health care-related fraud case involving diabetic test strips and then assisted federal investigators in targeting a dozen other suspects, court records show. He served one year and four months in prison, which was a reduction of his original sentence, two years and six months.

Tarrio also pleaded guilty to the state charges of burning a Black Lives Matter banner and carrying firearms magazines at a Proud Boys’ rally for Trump on Dec. 12, 2020, in Washington, D.C. He was sentenced to five months and after his imprisonment returned to Miami.

To date, more than 900 people, many from Florida, have been arrested in connection with the Jan. 6 insurrection at the Capitol building. Unlike Tarrio, the vast majority of them were actually there at the time of the assault. Of those, about 470 have pleaded guilty and more than 30 have been found guilty at trials, according to the U.S. Department of Justice.

The Proud Boys’ sedition case follows the recent trial of five members of a different white supremacist group, the Oath Keepers, which ended with convictions of all defendants — despite yielding a fractured verdict on the main seditious conspiracy charge. Elmer Stewart Rhodes III, the leader of the far-right organization, and one of his lieutenants, Kelly Meggs, who ran the militia group’s Florida chapter, were found guilty of sedition. But three lower-ranking members of the group were acquitted of that charge, which carries up to 20 years in prison.

Federal prosecutors in the Oath Keepers’ trial in November focused on a storehouse of weapons that the group kept across the river in Virginia, saying Rhodes and the other members plotted to use force to stop the lawful transfer of power between Trump and Biden. While Rhodes and his co-defendants did not commit any serious acts of violence themselves on Jan. 6, the weapons stashed in Virginia indicated a potential threat of force to bolster the charge of a seditious conspiracy for Rhodes and Meggs.

The case against the Proud Boys presents a different body of evidence based on hundreds of encrypted text messages sent by Tarrio and other senior members that prosecutors believe shows they were plotting to use violence to prevent Biden from taking office between the presidential election and Jan. 6.

Others named in the indictment, which was originally filed last year, are: Ethan Nordean, 31, of Auburn, Washington.; Joseph Biggs, 38, of Ormond Beach, Florida; Zachary Rehl, 36, of Philadelphia; and Dominic Pezzola, 44, of Rochester, New York. All have been detained and pleaded not guilty to charges.

Prosecutors are likely to call two cooperating witnesses who were former senior members of the Proud Boys and pleaded guilty before trial: Charles Donohoe, 34, of North Carolina, convicted of conspiracy to obstruct an official proceeding and assaulting, resisting or impeding officers; and Jeremy Bertino, 43, convicted of seditious conspiracy in connection with the Capitol breach and unlawful possession of a firearm from a search of his home in South Carolina.

Overall, the indictment’s evidence would appear to undermine arguments by some defendants implicated in the Jan. 6 probe that the assault on the Capitol was a spontaneous protest. But, to prove the main sedition charge, prosecutors will have to prove that “the purpose of Proud Boys’ conspiracy was to oppose the lawful transfer of presidential power by force” in thwarting Congress’ effort to certify the Electoral College results showing Biden won the presidency.

The indictment describes Tarrio as the former national chairman of the Proud Boys, which describes itself as a “pro-Western fraternal organization for men who refuse to apologize for creating the modern world, aka Western Chauvinists.”

Tarrio is accused of organizing a group of hardcore members — the Ministry of Self Defense — to develop “national rally planning” for a “Stop the Steal” protest on Jan. 6 to coincide with Congress’ certification of the Electoral College vote that same day. The indictment further accuses Tarrio and the other Proud Boys defendants of devising a militant strategy to target the Capitol building, using the internet not only to develop strategies and recruit members but also to raise funds and buy paramilitary gear for the assault.

On the afternoon of Jan. 6, as the Proud Boys and other extremist groups stormed the Capitol, Tarrio watched the assault on TV news and expressed his support, according to the indictment.

“After I finish watching this I’ll make a statement about my arrest (on Jan. 4) ... But for now I’m enjoying the show ... Do what must be done. #WeThePeople.”

A few minutes later, Tarrio posted: “Don’t f***ing leave.”

A Proud Boy member responded, “Are we a militia yet?”

In a series of posts, Tarrio said:. “Yep ... Make no mistake ...We did this ...”