A federal judge appeared skeptical Tuesday about the Justice Department’s bid to revoke pretrial release for two members of the Proud Boys awaiting trial on charges stemming from the Jan. 6 attack at the U.S. Capitol.
U.S. District Judge Timothy J. Kelly said newly discovered messages sent by Ethan Nordean and Joseph Biggs encouraging other Proud Boys to take action ahead of the Capitol riot does not necessarily prove the pair are a danger to the community.
“In terms of connecting their planning to the violence [at the Capitol], these messages don’t move the needle much,” Judge Kelly said at a hearing.
Prosecutor Adam McCullough said the new evidence also includes a video of Mr. Biggs and Mr. Nordean moving to the front of the mob and shaking a fence at the Capitol before it falls and rioters run over it.
Judge Kelly still wasn’t sold.
“Evidence of violence on that day is pretty muted,” he said. “We have the shaking of the fence. OK. That is something, but it is not directed at a person. Both are defendants moving toward the front of the group, but maybe not the very front. It’s not violence directed through their hands.”
The judge also noted there was no evidence the pair brought weapons to the Capitol, neither had a criminal history and both have stayed out of trouble since their arrest.
Judge Kelly concluded the hearing without issuing a decision on whether Mr. Biggs and Mr. Nordean should return to custody. He asked for more time to watch the video of the pair allegedly smashing the fence.
Another hearing in the case is scheduled for Friday afternoon.
Mr. Biggs and Mr. Nordean were initially arrested on lesser offenses, including disorderly conduct on the Capitol grounds and trespassing. They were both freed from detention shortly after their arrests.
Since then, a federal grand jury has indicted them and others on charges they conspired to cause mayhem at the Capitol ahead of the Jan. 6 vote to certify President Biden’s election victory.
Justice Department prosecutors said last month they discovered messages from Mr. Biggs and Mr. Nordean that prove the two are a threat to the community. They have asked Judge Kelly to revoke their pretrial release and jail them ahead of their criminal trials.
The communications sent on Jan. 5, included a message by Mr. Biggs warning Proud Boys to “avoid getting into s—t tonight … tomorrow is the day,” according to court documents.
Mr. Nordean sent messages saying they want to “smash some pigs to dust” and “burn [Washington] to ash,” court documents revealed.
“The idea of preparing some sort of violent confrontation, including a violent confrontation with law enforcement … that’s a pretty stark memorialization of where this group was in terms of its thought process on Jan. 6,” Mr. McCullough told the court Tuesday.
Mr. McCullough said the messages show that Mr. Nordean was able to direct members of the far-right group to act from his home, warning that home confinement may not be enough to stop them from issuing similar directives.
“He didn’t plan this from the west alcove of the Capitol. He planned these actions and made these communications from his home,” he continued. “Putting this defendant in home confinement doesn’t protect the public from the threat it faces from someone like Ethan Nordean.”
Mr. Nordean’s lawyer, Nicholas Smith, argued the government cherry-picked messages from a group chat that included dozens of people. He also accused prosecutors of overselling the video of the pair knocking down the barricade.
“The government says it comes down to the video, but the government has to identify a specific or articulable threat to the community,” he said dismissing the messages cited by prosecutors as “vague comments.”
Daniel Hull, who is representing Mr. Biggs, repeated most of Mr. Smith’s arguments but said the fact that his client has complied with the conditions of his release underscores that he is not a danger to the community.
• Jeff Mordock can be reached at email@example.com.
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