Proud Boys leaders facing seditious conspiracy charges shouldn’t face a jury until early 2023 the Justice Department contended Tuesday, warning that the ongoing work of the Jan. 6 select committee had made it difficult for both sides to prepare for trial.
In a court filing Tuesday evening, Assistant U.S. Attorney Jason McCullough noted that the Proud Boys had been given a prominent role in the select committee’s televised hearings, which described the group as crucial instigators of the riot that disrupted the transfer of power on Jan. 6, 2021. But the select committee has also refused, for now, to share with the DOJ the transcripts of its 1,000 witness interviews but has indicated that it may release them publicly in the next weeks or months.
“The parties’ inability to prepare their respective cases to account for such additional information is potentially prejudicial — to all parties,” McCullough wrote. “The parties’ inability to incorporate this information into their respective cases provides a strong basis to continue the trial until both sides are given a reasonable opportunity to review the information.”
It’s a significant concession for DOJ, which had initially intended to try the seditious conspiracy case in early August. DOJ revealed its frustration with the select committee in a court filing last week that similarly endorsed a delay in the Proud Boys trial. In Tuesday’s filing, DOJ proposed beginning jury selection Dec. 12, 2021, with opening statements to begin the week of Jan. 2, 2023.
That proposed schedule, which will be considered Wednesday by U.S. District Court Judge Timothy Kelly, increases the likelihood that one of the two most significant cases to emerge from the Jan. 6 attack on the Capitol won’t be resolved until well after the two-year anniversary of the attack.
In its filing, DOJ noted that former Proud Boys national chairman Enrique Tarrio was featured prominently during the select committee’s first public hearing June 9, including a clip of a video deposition he conducted with the panel earlier this year. The committee also focused significantly on the actions and moments of Proud Boys Joe Biggs and Dominic Pezzola, the first rioter to breach the Capitol that day.
But DOJ is even more concerned that the select committee could release new batches of information just as the trial gets underway.
“Representatives of the Committee have indicated that the relationship between the Trump Administration and the Proud Boys and other groups will be the subject of a future hearing,” McCullough noted. “Were the trial in this case not continued, the parties in this case could find themselves in the unprecedented position of litigating a criminal trial simultaneous to the release of a Congressional report that is likely to include robust descriptions of the criminal conduct of the defendants.”
Rep. Jamie Raskin (D-Md.), who is slated to lead the hearing on the Proud Boys connections to Trump’s orbit, said he doesn’t believe his focus on that aspect of the investigation would make it more difficult for DOJ to prosecute the Proud Boys leadership.
“A lot of them have already been prosecuted or pled guilty,” he noted, referring to a slew of Proud Boys members charged for their roles in the Capitol attack but not connected to the seditious conspiracy case. “Also, you know, juries that are sequestered and shielded. So I think that our justice system has lots of precautions.”
Asked whether the select committee should expedite the delivery of transcripts specifically related to the Proud Boys cases, Raskin noted the distinction between DOJ’s mission and the select committee’s.
“We have every interest in seeing that individual criminal accountability is vindicated,” he said of DOJ’s prosecutions, “Just like we have every interest in seeing that general political accountability is restored, which is our basic function. We do not want to interfere in any way with the Department of Justice and we're trusting that they're going to be able to totally execute the law enforcement function.”
“Attorney General [Merrick] Garland is my constituent and I have no complaints about my constituents, Raskin added with a smile. “You know, I trust him to be a strong and effective prosecutor.”