Prosecutors and defense lawyers in the Proud Boys case and other Jan. 6 criminal cases have grown increasingly frustrated over the past two weeks, as a House select committee holds a series of closely watched, nationally televised hearings about the attack and the events that preceded it.
The committee has highlighted witness testimony and video evidence about what lawmakers say is potentially criminal behavior on the part of former president Donald Trump and others who falsely claimed the 2020 election was stolen. The hearings do not include rejected arguments or questions. One defense lawyer, John Hull, wrote in a court filing last week that the hearings are tainting the potential jury pool of “lovably dorky, wonky, media-attentive Washingtonians.”
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Experts say there is a larger legal problem lurking, too: the possibility that buried in the transcripts of more than 1,000 witness interviews the committee plans to release with a public report in September are pieces of evidence that might help the Proud Boys defendants.
The committee has said it will share those transcripts with the Justice Department when they are done holding hearings. Prosecutors have said that timetable is not good enough because they need to see any such evidence well before the trial begins.
In a letter last week to the committee, senior Justice Department officials wrote “it is critical that the Department be able to evaluate the credibility of witnesses who have provided statements to multiple governmental entities in assessing the strength of any potential criminal prosecutions and to ensure that all relevant evidence is considered during the criminal investigations.”
In response, the chairman of the panel, Rep. Bennie G. Thompson (D-Miss.) said that the committee will cooperate with the Justice Department but has to finish its hearing work first. At various times, the nine lawmakers on the panel have suggested they have uncovered evidence of crimes committed in the run-up to Jan. 6 and prodded the Justice Department to get more aggressive.
Some legal experts, however, say the most important question is whether the committee has amassed at least some evidence that could favor the defence. Under a long-established court precedent called Brady, federal prosecutors are obligated to share with the defense any exculpatory material the government has. When prosecutors fail to share that information, charges or convictions can be thrown out of court.
“As a separation of powers issue, this is a brain twister,” said Stanley Brand, a former counsel for the House of Representatives who has recently represented some Jan. 6 witnesses and defendants. “But it was also totally inevitable — you have the largest criminal investigation in Justice Department history, and you plunk down in the middle of that, a highly publicized set of congressional hearings with 1,000 depositions. That’s a monstrous problem in terms of meeting your Brady obligations under the law. My guess is [prosecutors] don’t really know most of what’s in those depositions. We’ve only seen a smidgen.”
It is not enough for prosecutors to say that they can’t turn over material that they don’t have because Congress won’t give it to them. In 2015, a federal judge tossed out an obstruction charge against a former BP executive charged with misleading lawmakers about the severity of an oil spill, ruling that since Congress would not provide some witness testimony, he could not get a fair trial. The executive was later acquitted at trial of a related false-statements accusation.
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The House committee plans at least one hearing in September, which could overlap with the end of an August Proud Boys trial or with jury deliberations. And September will also feature heated congressional races, in which the importance or danger of Jan. 6 is likely to be debated frequently.
But if the judge grants the requests for a delay in the trial, that could have a cascading effect on the Justice Department’s work on other Jan. 6 cases, pushing back prosecutors’ timetable for potential further investigative or charging decisions.
Most of the defendants in the upcoming trial have asked for a delay until December — after both the hearings and the congressional elections. Federal prosecutors have also asked the judge for a delay, citing their need to review committee transcripts before trial.
Hull, the defense lawyer representing Proud Boy leader Joseph Biggs, filed court papers charging lawmakers had turned their Jan. 6 investigation into a circus, using “misrepresentations, outright lies and high tabloid noise of the first order” to describe Biggs.
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Lawyers for another defendant in the case, Ethan Nordean, on Monday agreed that delaying a trial until the committee hearings end “would help improve if not eliminate the unfair prejudice,” but argued that their client should also be released on bond if there is a delay.
“Compelling Nordean to choose between his constitutional rights to liberty, a trial by an impartial jury and a speedy trial would not just be ‘intolerable,’ but would feed the suspicion that he is being held in pretrial confinement not on the rule-of- law basis of public safety but in order to punish him before conviction or to squeeze him into waiving his right to a trial,” lawyers David B. Smith and Nicholas D. Smith wrote.
Nordean, also known as “Rufio” and “Panman,” was one of the alleged Proud Boys ringleaders on the ground that day with Biggs, leading a group of as many as 200 people from the Washington Monument to the Capitol before Trump’s speech and marching around the building.
Videos from that day show members of the group carried out several of the earliest and most aggressive efforts to confront police, breach barricades and break into the Capitol.
Prosecutors also say Nordean and Biggs led efforts to organize and recruit Proud Boys followers to come to Washington and raised funds for their protective gear and radios.