A federal judge on Wednesday postponed the trial of five members of the extremist group Proud Boys after several defendants and prosecutors warned that the planned release of a public report and witness transcripts from the high-profile House investigation into the Jan. 6, 2021, Capitol attack could upend preparations.
The move to a trial now set for December came as televised House hearings this month that have focused in part on alleged actions by Proud Boys members amid what lawmakers say is potentially criminal behavior by President Donald Trump and others who falsely claimed the 2020 election was stolen before the attack on Congress.
The Proud Boys trial judge ruled Wednesday after Justice Department senior officials warned a lawyer for the House panel last week that by not giving prosecutors access to about 1,000 transcripts of private witness interviews before their planned public release in September, lawmakers were complicating prosecutors’ “ability to investigate and prosecute those who engaged in criminal conduct.”
“It is reasonably foreseeable that information relevant to the defendants’ guilt (or innocence) could soon be released to the parties and the public,” Assistant U.S. Attorney Erik Kenerson wrote Tuesday. “The parties’ inability to prepare their respective cases to account for such additional information is potentially prejudicial — to all parties.”
The prosecution team included last week’s letter to the committee from the heads of the Justice Department’s national security and criminal divisions and the U.S. attorney for Washington in a court filing notifying Kelly that they agreed with two defendants’ motion to postpone trial.
“The transcripts are must-haves for trial preparation … not during trial or after,” wrote attorney John D. Hull for defendant Joseph Biggs, of Ormond Beach. Fla., who was joined by co-defendant Dominic Pezzola, of Rochester, N.Y.
Hull also demanded a delay until “the dust had settled” with regard to public opinion.
A third defendant, Zachary Rehl of Philadelphia, did not want to delay trial but believed he had no choice if he wanted a fair one, attorney Carmen Hernandez told the court.
“Mr. Rehl is once again faced with a Hobson’s choice. Proceed to trial under circumstances that will not allow for a fair and impartial jury or remain detained for an even longer time,” Hernandez said. “Under the circumstances, Mr. Rehl again submits that there is only one just and proper thing to do — take as much time as necessary to assure that the unfair publicity has dissipated and any evidence that is favorable to Mr. Rehl becomes available.”
Two defendants opposed any delay.
“Tarrio believes that an impartial jury will never be achieved in Washington D.C. whether the trial is in August, December, or next year,” attorney Sabino Jauregui wrote.
Ethan Nordean of the Seattle area opposed a delay unless he was freed from pretrial detention.
Nordean’s attorneys David B. Smith and Nicholas D. Smith argued that forcing their client to choose between a fair trial or a speedy one after he has been incarcerated since April 2021 feeds “the suspicion that he is being held … 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.”
Kelly told both sides to prepare for jury selection starting Dec. 12 and warned that he planned to hold trial through the holiday season except for the federal holidays of Christmas and New Year’s Day.
“I don’t think any of us would choose … to begin a trial of four to six weeks on Dec. 12,” the judge said, but “I think I owe to the jury, and I owe it to the parties to keep going as hard I can. I think largely we will keep going without a break through the holidays.”