U.S. District Court Judge Timothy Kelly in Washington, D.C., snapped at one of the lawyers of the Proud Boys in court Monday. Lawfare editor Roger Parloff has spent the last 61 days live-tweeting what he observes in the trial that isn't being streamed to the public, only the audio has been available at times.
The top five members of the Proud Boys that are appearing in court face "a ten-count indictment, the government alleges that five Proud Boy defendants ... conspired to oppose the lawful transfer of presidential power by force," Parloff explained in January when the trial began. The men are former Proud Boys chairman Enrique Tarrio, Ethan Nordean, Joseph Biggs, Zachary Rehl and Dominic Pezzola.
Monday marked closing statements from the lawyers and theoretically should be the final day of the trial, and the next steps are the jury's decision.
Assistant U.S. Attorney Jason McCullough asked the judge for a sidebar as the Proud Boys lawyer walked through all of the things they took issue with something said by the Proud Boys' lawyer.
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Nicholas Smith, attorney for Ethan Nordean, accused the prosecutors of building a case on “misdirection and innuendo.” He went on to say that the prosecutors repeatedly played clips of Trump in an effort to manipulate the jury.
“Does that prove some conspiracy by the men here?” Smith asked jurors. “We all know it doesn’t.”
He went on to cite the definition of seditious conspiracy and argue that the government hasn't shown any proof other than the men engaged in a protest and march. He said that the prosecutors hadn't shown when an agreement was reached or by whom, and if there was a conspiracy, then the men would have been aware of a plan. The government prosecutors objected to the comment, which was sustained by the judge. That's when the court reporter asked for a 10-minute break.
When the jury left, Judge Kelly chastised the Proud Boys' lawyers. He said that so much of the closing statements are consistent with how the lawyer has conducted himself throughout the case.
"You've got misstatements of the law. You've stated them, and now you've got a graphic. When you're done, I'm going to instruct the juror that what you've told them is wrong. It's not the law land. It's quite misleading. Tell me why you should tell them what the law is and not me."
Smith claimed the other prosecutors instructed the jury on the law in their statements.
"We're not reading law that inconsistent — it's from a supreme court case," said Smith
"It's taken out of context," the judge said. He also argued that Smith has repeatedly commented on who has been charged and who has not. "We've litigated this many times, but goodness gracious."
After a back and forth, the judge told Smith, "I have to correct them after you're done. That is not the law, and they are to disregard it. This is what happens when we take a lot of time to litigate jury instructions and you disregard them."
