Brandi Buchman for Daily Kos Liveblogs

Daily Kos Staff

Tuesday January 31, 2023 · 5:47 AM PST

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FBI Special Agent Kate Camilleri will return to the witness stand Tuesday to offer jurors insights on the defendant Proud Boys as the seditious conspiracy trial enters its 12th day. Catch up here.

UPDATE: Tuesday, Jan 31, 2023 · 9:58:40 AM PST · Brandi Buchman

FBI Special Agent Camilleri came under cross-examination by Nick Smith, the defense attorney for Ethan Nordean, as well as Norm Pattis, the defense attorney for Joseph Biggs.

When Smith questioned her, he worked to impeach her credibility and knowledge of the evidence at issue. She was part of a team of agents who reviewed the defendant’s texts and social media posts and under cross from Smith, established that it was not her who decided what Proud Boys communications should be included at trial. 

Camillieri said she would classify the numerous Proud Boys messages leading up to Jan. 6 as evidence of a culture of violence and that this explained their state of mind. 

Smith attempted to trip her up on this point and asked her to follow his logic: does any talk of violence, whether serious or not, indicate a plan to commit violence later? 

Agent Camilleri said it did not—necessarily—but in her experience investigating terrorist organizations like ISIS or Al Qaeda, when a culture of violence exists and then you have a crime that occurs, like in a lone wolf attack, for example, it’s important to have the historical context of a group’s behavior. 

Stretching logical limits, Smith then asked Camilleri about Nordean’s  posts on Parler where he discussed forming his own political party while denigrating both Republicans and Democrats alike as do-nothings. 

“If a person indicates, ‘screw the Republican party’ — that could mean they may not have a motive to put a Republican in office?” Smith asked. 

The agent said it was possible. 

Smith also asked Agent Camilleri if there was a “strike force” created by the Justice Department or FBI to bring seditious conspiracy charges. 

There was not, she said. 

Smith then asked if she knew who Michael Sherwin is? Before she could answer, the Justice Department objected and Judge Kelly sustained the objection. 

Sherwin appeared on “60 Minutes” in March 2021 and according to The Washington Post, remarked that seditious conspiracy charges could be filed at some point against defendants in the probe of the attack and that Trump’s conduct was also under review. He said something similar in the immediate aftermath of the Capitol attack. 

Nordean’s attorneys have latched onto this for more than a year, arguing that it confirms their client cannot receive a fair trial. 

Sherwin stepped down from investigating Jan. 6 two days after he had recorded the interview with “60 Minutes.”

When Agent Camilleri came under cross-examination by Norm Pattis, the defense attorney focused her attention on the book utilized by Tarrio, “The 48 Laws of Power.”

She read descriptions of some of the laws from the book for the jury, including the third law that Tarrio cited in a message to Proud Boys, “conceal your intentions.” 

Pattis wasn’t able to get out many questions without an objection launched by federal prosecutors but he tried nonetheless, asking Camilleri why she read the book prior to her probe of Jan. 6 and if she used the book to guide her investigation or techniques. 

“I like to read,” Camilleri said, noting that it interested her because the book is banned in prisons. 

One of the laws directs its adherents to “keep others in suspended terror and cultivate an air of unpredictability.”

“How long before your involvement in Jan. 6 did you read laws of power, or about keeping people in a suspended state of terror?”

The agent was unable to recall. 

UPDATE: Tuesday, Jan 31, 2023 · 8:04:50 AM PST · Brandi Buchman

Once FBI Special Agent Kate Camilleri returned to the witness stand, Assistant U.S. Attorney Jason McCullough began reviewing a series of Parler posts from the defendants from late December 2020 and early January 2021. (These go toward proving the defendants’ intent to stop the nation’s transfer of power by force, according to the Justice Department.)

McCullough began by focusing on a flashpoint leading to the insurrection: Dec. 19, 2020. 

This was the day that former President Donald Trump sent out his infamous tweet urging supporters to come to Washington on Jan. 6 for a “wild” rally. It prompted a wave of responses from Proud Boys on Parler. 

Defendant Joseph Biggs: “Two measly signs get burned and the world comes to a halt. Thousands of businesses ruined by Democrats, Businesses looted burned by antifa/blm, Trump signs vandalized. Nothing. Silence. This is a war on true Christianity. This is a war on Americanism. This is only the beginning.”

A day after Trump’s tweet, Biggs wrote: “Just booked my flight for DC again this time Jan 5-7″ and then “I need a stab proof vest.” 

Defendant Zachary Rehl responded to Trump’s tweet too and when a Parler user asked him why Jan. 6 was important, Rehl replied: “It’s the day Congress gets to argue the legitimacy of the electoral college votes and yes, there’ll be a big rally that day.” 

A day after Christmas 2020, Rehl shared an article on Parler that suggested former Vice President Mike Pence had the authority to overturn the election. 

On Jan. 1, Biggs wrote on Parler:  “Mike Pence will betray President Trump, this is my prediction, I’ll be in DC to witness this historic Judas moment when he turns on the right thing to do for mere coin.” 

Biggs also specifically flagged senators including Ted Cruz, Tommy Tuberville, Marsha Blackburn and others, saying “they will object” on Jan. 6. 

As for Tarrio, the leader of the Proud Boys, went on Parler on Dec. 29 and said there would be a big announcement about the Proud Boys and Jan. 6. 

“Chess. Always chess,” Tarrio wrote. 

The announcement he would come to make was about a Washington Post report that mentioned how an area hotel had become a Proud Boys hangout and the hotel had closed for three days as a result of the press. 

“They have fallen victim to fake news. With the Proud Boys, you can see the media machine do the globalist dirty work. The media is the enemy of the people. We had already stopped using the hotel as a hub three months ago,” he wrote on Dec. 29. “With the new ability of being able to put 3,000 boots on the ground, we outgrew any single hotel. Proud Boys will turn out in record numbers on Jan 6. We wont be using our traditional black and yellow. We will be incognito and we will be spread out across downtown DC.” 

Tarrio urged Proud Boys to consult the book “The 48 Laws of Power” and specifically, laws 3, 4, 14, 15, 17, 29, 37, 39, and 48. 

Agent Camilieri read from the third rule for jurors. It essentially instructed: cover your plans in enough smoke that it renders your opponent unable to see what is happening until it is too late. 

Going toward the conspiracy charge, the prosecution had jurors then review the response to Tarrio’s instructions from defendants including Nordean and Biggs. 

The language used by the defense as Jan. 6 approached started to heat up even more. On Jan. 2, Biggs took to Parler and wrote:  “Every lawmaker who breaks their own stupid fucking laws should be dragged out of office and hung. The government should fear the people, not the other way around. You work for us. You don’t have ruling power over me. We only allow you to have that privilege. FAFO.”

FAFO is shorthand for “fuck around and find out.”

UPDATE: Tuesday, Jan 31, 2023 · 6:52:26 AM PST · Brandi Buchman

Whew. Things got tense this morning!

Defense attorneys Carmen Hernandez and Norm Pattis launched objections over the DOJ’s intent to enter a book into evidence that Henry Tarrio referenced in text messages in December 2020. The book was “The 48 Laws of Power.” Tarrio referenced the third law in a text shortly after the 2020 election. 

Defense attorneys think the book is largely irrelevant and could unfairly prejudice the jury. The Department of Justice was willing to redact it and things chugged along until defense attorney Carmen Hernandez objected, offering an incredulous “really?” to the judge’s decision.

Hernandez pushed back and said other attorneys were allowed to approach to raise their objections. In fact, def. attorneys who made objections this morning (Pattis, Jauregui) did so from their seat.

“Ms. Hernandez, I have rules of decorum in this court and for you to come up here and tell me, I need a continuance over an exhibit you tried to exclude… is absurd. I don’t need everyone parading up to the microphone. For the most part, given how many of you there are, I’ve heard you from your seats this morning, so I’ll hear you (Ms. Hernandez) from your seat this morning. But what I won’t do is have you hijack the proceedings with your snide remarks. That’s done. you or any other counsel.”

UPDATE: Tuesday, Jan 31, 2023 · 6:43:43 AM PST · Brandi Buchman

Hello, hello, and welcome to another day of live coverage from inside the federal courthouse in Washington, D.C. 

We enter day 12 of the Proud Boys trial and according to my notes (and with confirmation by a fellow reporter here in the room), this trial has featured no less than nine calls for a mistrial so far.

While such requests certainly aren’t unheard of in the typical high-stakes case, the practice has become borderline ritualistic for Proud Boys defense attorneys. 

When we left on Monday, defense attorney Carmen Hernandez requested a mistrial after FBI Special Agent Kate Camiliieri took the stand. She argued that the special agent’s testimony was overly broad and did not focus alone on the Proud Boys social media posts, as the defense had expected. 

Judge Kelly did not agree and denied the request. Moments later, attorneys for Henry Tarrio and Joe Biggs joined the request for a mistrial but for other reasons. Defense attorney for Tarrio, Sabino Jauregui, insisted that the government improperly entered evidence that was barred.

That evidence would be an alleged reference to a sign featuring a Black Lives Matter emblem that was stolen from a Black church and burned by Henry Tarrio in December 2020. 

The DOJ argued that their reference in court on Monday to a BLM sign being taken from a church was not overt. Assistant U.S. Attorney Jason McCullough said a sign was taken off a piece of plywood from a church.

Defense swore they heard “Black Lives Matter” specifically referenced. This detail was barred from evidence earlier because the judge found that including the specifics may unfairly prejudice the jury. (Tarrio has already served his time for the theft and vandalism of the flag.) 

Kelly said on Monday that the court would check the transcripts to see what the DOJ actually said during its direct examination of Agent Camilleri. 

This hasn’t been addressed this morning before jurors enter. Instead, we are addressing another issue: proposed jury instructions around First Amendment protections for defendant’s speech. 

In effect, the defense argues that the Proud Boys’ history of communications leading up to and on Jan. 6 may be vile but its not inciteful and should be protected under the First Amendment. 

Judge Kelly agreed to come up with a set of instructions for the jury that would make the distinction. 

“The proposal the government has suggested is the one that Judge Mehta gave in Oath Keepers case and it focuses on how the First Amendment protects offensive speech and it references, two times in instruction, the concept that the First Amendment may protect. And then it says, you may not find a defendant committed a crime simply because of offensive speech,” Judge Kelly said. 

There is a difference in the Proud Boys case versus the Oath Keepers case, Kelly noted. The concept of incitement was the central thrust in the Oath Keepers case. 

“This isn’t an incitement case and we have gone round and round with that. So, we could add the concept of posing an imminent risk of violence and likelihood to produce such violence [to the jury instructions,” Kelly said. 

The jury instructions on this point will now read: “You have heard evidence about statements made to and by some defendants and other individuals. The First Amendment protects an individual’s right to free speech including speech you may find to be vile, hateful, or offensive, or does not pose an imminent risk of violence and is not likely to produce such violence. The First Amendment does not protect speech integral to criminal conduct. You may not find that a crime existed simply because you find that defendants engaged in speech you find offensive… you may find statements of evidence that conspiracy existed or defendant entered into a conspiracy or that defendant had a certain motive, intent, or knowledge but you can’t find someone guilty of a crime simply by virtue of their statements.”

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