WASHINGTON — With a trial on the horizon and at least one cooperator locked down, federal prosecutors on Monday ramped up the stakes for Proud Boys leaders charged in the Jan. 6 attack on the Capitol, announcing a new seditious conspiracy indictment.
The original non-sedition conspiracy case against Henry “Enrique” Tarrio — the Proud Boys’ former national chair — and his four codefendants already carried significant potential prison time, but Monday’s superseding indictment added two new felony counts along with the symbolic heft of the seditious conspiracy charge. They’d previously been charged with conspiring to obstruct Congress’s certification of the Electoral College vote. The latest set of charges widened the scope of the alleged criminal conduct, accusing them of conspiring to “oppose the lawful transfer of presidential power by force.”
It’s the Justice Department’s second blockbuster seditious conspiracy case in connection with the Jan. 6 insurrection. Signaling prosecutors’ focus on the role that extremist movements played in the attack, the first seditious conspiracy indictment came down in January against Oath Keepers leader Elmer Stewart Rhodes and a cluster of other defendants with an alleged connection to the group.
More than 800 people have been charged to date in connection with Jan. 6; the most common felonies have been for obstructing Congress and assaulting or interfering with police. Seditious conspiracy is a rarely charged offense in federal prosecutions. The latest Proud Boys indictment came on the eve of a public hearing set for primetime on June 9 before the special congressional committee investigating the attack. The committee’s work has included probing the involvement of far-right groups like the Proud Boys, which has described its members as “Western chauvinists,” and the Oath Keepers, which has focused its recruiting on current and former members of the military and law enforcement.
The bulk of the new Proud Boys indictment largely tracks the conspiracy case that a federal grand jury in Washington, DC, returned in March against Tarrio and his codefendants Ethan Nordean, Joseph Biggs, Zachary Rehl, and Dominic Pezzola. It repeats nearly word for word prosecutors’ allegations of what the group did before, during, and immediately after a mob of thousands descended on the Capitol complex. A new paragraph near the end describes a set of texts that prosecutors say Tarrio exchanged celebrating the attack with an unnamed person referred to as “PERSON-1” shortly before members of Congress came back in the evening to finish certifying the election once police had cleared the building.
According to the government, after PERSON-1 wrote to Tarrio, “Brother. You know we made this happen,” and “I’m so proud of my country today.” Tarrio replied, “I know.” PERSON-1 texted, “1776 motherfuckers,” and Tarrio wrote back, “The Winter Palace”; the indictment didn’t elaborate on what prosecutors believed Tarrio was referring to. PERSON-1 texted, “Dude. Did we just influence history?” and Tarrio replied, “Let’s first see how this plays out.”
A jury trial in the non-sedition conspiracy case is set to begin Aug. 8. It wasn't immediately clear whether the new indictment would change that timeline. Tarrio and his codefendants are in jail pending trial and are set to appear before US District Judge Timothy Kelly for a previously scheduled hearing later this week.
Tarrio's attorney Nayib Hassan wrote in an email that, "Mr. Tarrio will have his day in court and we will vigorously represent our client through this process. Mr. Tarrio looks forward to being vindicated of these allegations."
Rehl's lawyer Carmen Hernandez asked the court for permission to release a statement responding to the new charges on behalf of her client. Hernandez cited court rules that limit attorneys from speaking publicly about pending cases, and argued that the Justice Department had circumvented that rule by issuing a press release announcing the latest indictment. Hernandez also used the filing to question the legal grounds for the seditious conspiracy count against her client.
"To bring such serious charges against Mr. Rehl at this late date without alleging a single new fact against him is simply wrong and deserves a response. Indeed, in counsel’s decades of defending persons accused of federal criminal offenses, much of my career spent as a public defender representing indigent persons and persons of color, I should not be surprised at the heavy hand of federal prosecutors," Hernandez wrote. Other defense lawyers in the case did not immediately return requests for comment.
Like the Oath Keepers case, the Proud Boys conspiracy case had been pending in a few different iterations since last year. Tarrio was added in March. He isn’t charged with physically being at the Capitol or participating in the attack on Jan. 6 — he’d been arrested two days earlier and was ordered to leave DC the next day — but rather is accused of playing a central role in the group’s planning and encouraging people who were on the scene that day. Prosecutors say Tarrio didn’t immediately leave the city on Jan. 5, though, and instead met up with Rhodes and other individuals at an underground parking garage. Tarrio pleaded guilty in the DC case and finished serving his jail sentence earlier this year.
Looming conspiracy charges have yielded a string of cooperation agreements in cases involving the Proud Boys and the Oath Keepers. Charles Donohoe of Kernersville, North Carolina, a leader of a local Proud Boys chapter, entered a guilty plea in April in connection with the earlier version of the Proud Boys conspiracy case that included Tarrio and agreed to cooperate with the government.
Donohoe’s guilty plea included an admission that he was aware leaders within the organization “were discussing the possibility of storming the Capitol” at least two days before the Jan. 6 attack and that the group’s “goal” was to stop the peaceful transfer of power. Late last year, Matthew Greene, a member of the Proud Boys charged in a separate conspiracy case, entered a guilty plea and agreed to cooperate with federal investigators. Eight people with a connection to the Oath Keepers have pleaded guilty and agreed to cooperate with the government, including three who have pleaded guilty to seditious conspiracy.
The latest Proud Boys indictment also adds a new charge that accuses the group of conspiring to prevent members of Congress and police officers from performing their duties by using force, intimidation, or threats. The seditious conspiracy charge carries the same maximum penalty — up to 20 years in prison — as some of the other felony crimes that Tarrio and his codefendants were already facing in the earlier indictment.
UPDATE
Updated with additional information from defense attorneys Nayib Hassan and Carmen Hernandez.