As the testimony of Jeremy Bertino, the government’s star witness in the Proud Boys sedition trial, came to an end this week, there was a moment that crystallized the challenges the prosecution has faced throughout the marathon proceeding.
For five days, Mr. Bertino — a former Proud Boy from North Carolina — told the jury how the far-right group fell into a kind of collective panic after the 2020 election and ultimately sought to keep Joseph R. Biden Jr. from taking power by serving as the “tip of the spear” in the attack on the Capitol on Jan. 6, 2021.
On Tuesday evening, prosecutors sought to punctuate his testimony by asking his final thoughts on the chief allegation in the case: that the five Proud Boys on trial had reached an agreement to use physical force to stop the transfer of presidential power.
Over the course of several questions, Mr. Bertino — who was at home in North Carolina on the day of the attack — acknowledged that he was never privy to the Proud Boys’ plans for Jan. 6. And yet he said he knew the group’s objective: to stop Mr. Biden from becoming president. He arrived at this conclusion, he went on, not through any specific dealings with his compatriots, but rather through “cumulative conversations” leading up to the attack.
While the answers he provided were some of the best evidence the government had introduced in nearly seven weeks of trial, they were also an unusual description of a criminal conspiracy. Immediately raising an objection, Norm Pattis, one of the defense lawyers in the case, called the amorphous agreement described by Mr. Bertino “a neo-Freudian kind of unconscious” version of conspiracy.
Mr. Bertino’s time on the stand provided the jury with several things, including a primer on the uniquely violent culture of the Proud Boys. But it also underscored what will surely emerge as the most important question in the case: Can the prosecution prove that the defendants — Enrique Tarrio, Ethan Nordean, Joseph Biggs, Zachary Rehl and Dominic Pezzola — reached an agreement to violently disrupt the election certification that was taking place inside the Capitol on Jan. 6?
The trial, in Federal District Court in Washington, began in January as federal prosecutors accused Mr. Tarrio, who once led the Proud Boys, and the other four defendants of launching an attack against “the heart of our democracy”— the lawful transfer of presidential power. The defense has argued all along that there is little or no evidence that the five men conspired to do anything, let alone to stop lawmakers from certifying the results of the election.
Long before the trial began, prosecutors understood that they were going to have to get somewhat creative in proving a conspiracy. That is because despite the vast amount of evidence the government collected in the case — including more than 500,000 encrypted text messages — investigators never found a smoking gun that conclusively showed the Proud Boys plotted to help President Donald J. Trump remain in office.
Instead, the prosecution found Mr. Bertino, a bald and bearded former Proud Boy and the only member of the group so far who has pleaded guilty to seditious conspiracy charges and is cooperating with prosecutors in the hopes of getting a lighter sentence. By interpreting the messages for the jury and by offering his insights on the Proud Boys, Mr. Bertino helped make an inferential case that the five defendants worked together to violently subvert the democratic process.
He testified that the Proud Boys’ culture of violence and increasing desperation after the election came together with cataclysmic results. Even if there were no explicit orders to attack the Capitol on Jan. 6, he said, members of the group felt there was an implicit agreement to band together that day and to take the lead in stopping Mr. Biden from entering the White House.
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“I expected them to save the country by any means necessary, up to and including violence,” Mr. Bertino said.
The prosecution used a similar strategy at the trial of Stewart Rhodes, the leader of the Oath Keepers militia, who was convicted of sedition in November along with one of his top lieutenants. Even though the government’s witnesses repeatedly testified that the Oath Keepers had no plan to storm the Capitol, prosecutors convinced the jury that Mr. Rhodes reached an unspoken agreement with his co-defendants in launching the attack.
In some respects, the evidence against the Proud Boys has been stronger than it was against the Oath Keepers.
Early in his testimony, Mr. Bertino told the jury that physical violence was baked into the fabric of the Proud Boys, describing how the group would often provoke its adversaries into acts of aggression and then retaliate and claim the moral high ground.
He also said that as Mr. Biden’s victory moved closer toward its final certification, the group’s top leaders were increasingly concerned that “time was running out to save the country.” The Proud Boys, he explained, would have to take the lead in galvanizing Mr. Trump’s supporters into carrying out what he described as an “all-out revolution.”
On Jan. 6 itself, Mr. Bertino — recovering from stab wounds suffered during an earlier pro-Trump rally — was frenetically swapping texts with Mr. Tarrio while a mob overran the Capitol with the Proud Boys in the lead. Mr. Bertino expressed both pride and amazement to Mr. Tarrio, openly hoping that the rioters would track down Speaker Nancy Pelosi.
“Brother, You know we made this happen,” he wrote. “I’m so proud of my country today.”
“I know,” Mr. Tarrio responded.
But Mr. Bertino was far from an ideal prosecution witness. On cross-examination, the defense revealed that in previous interviews with the government, he repeatedly told investigators that the Proud Boys never had an explicit plan to stop the election certification and that he himself never fully expected violence to erupt on Jan. 6.
Under follow-up questions from the government, Mr. Bertino sought to explain his earlier statements by saying he was lying at the time and was seeking “to protect myself and protect everyone else from getting in any trouble.” At first, he told the jury, he was “trying to shape things so we looked innocent” and wanted to bolster “the narrative” that the Capitol attack “was all spontaneous.”
“That’s what we were putting out to everyone,” he said. “But looking back at it, I know that’s not true.”
The truth, he finally claimed, was that Mr. Tarrio often played things close to the vest, so it was not surprising that lower-level Proud Boys like him were unaware of what the group’s top leaders had been planning.
He also said he believed that he and the defendants had in fact entered into an agreement — albeit an implicit one — to forcefully stop the certification of the election.
“It was common knowledge that if everything else failed, there was no other option than to go into a civil war, a revolution,” Mr. Bertino said. “This was a common topic of conversation in all of the chats I was in.”
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