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Proud Boys during the January 6, 2021 Capitol insurrection.

Reprinted with permission from Daily Kos

The federal government's prosecution of the January 6 Capitol insurrectionists continues to roll along with hardly any change in direction or pace: Participants in the attack continue to be arrested as investigators accumulate more evidence, while judges continue to keep major players, particularly members of the Proud Boys and Oath Keepers, under lock and key.

However, one bright red flag was raised by Marcy Wheeler of Emptywheel—who has assiduously tracked and reported on the imposingly complex prosecutions from January 6—this week in the conspiracy case being assembled by prosecutors against the Proud Boys: It now emerges that one of the lead prosecutors in that case is Jocelyn Ballantine, the same DOJ prosecutor who engaged in dubious behavior around former Trump official Michael Flynn's prosecution, such as submitting altered documents. Could a botch job be around the corner?

Ballantine, as Wheeler details, engaged in a pattern of misconduct in handling the Flynn case that could easily result in a federal judge dismissing the case. And as the Proud Boys' attorneys made clear in their filings this week demanding that key players in the insurrection, including leaders Joe Biggs and Ethan Nordean, be granted pretrial release, their primary strategy appears to be aimed at obtaining exactly that kind of summary dismissal of the charges.

Wheeler points to three specific acts by Ballantine in the Flynn matter that raise concerns:

  • On Sept. 23, she provided three documents that were altered to Sidney Powell, one of which Trump used six days later in a packaged debate attack on Joe Biden.
  • On Sept. 24, she submitted an FBI interview report that redacted information—references to Brandon Van Grack—that was material to the proceedings before Judge Emmet Sullivan.
  • On Oct. 26, she claimed that lawyers for Peter Strzok and Andrew McCabe had checked their clients' notes to confirm there were no other alterations to documents submitted to the docket; both lawyers refused to review the documents.

Having a prosecutor on the Proud Boys prosecution team (let alone overseeing it) with a dubious conduct history poses serious risks for their success, and indeed for the broader prosecution: "Given Ballantine's past actions, it risks sabotaging the entire January 6 investigation," Wheeler observes.

The possibility of a bungled federal prosecution in the Proud Boys case raises the specter of a similar botch job in a major case involving right-wing extremists: Namely in 2018, when prosecutorial misconduct involving evidence sharing forced the federal judge overseeing the case against rancher Cliven Bundy for his 2014 armed standoff with federal authorities to order all charges dismissed—one of several cases of misconduct involving that U.S. Attorney's office. That dismissal, with prejudice, was upheld on appeal.

The attorneys for Biggs and Nordean, meanwhile, made a fresh appeal for their clients' pretrial release to home confinement, claiming the men posed neither a serious flight risk nor any threat to public safety in the interim. The attorneys presented clips from a video shot on January 6 in Washington, D..C., by fellow Proud Boys member Eddie Block, claiming they demonstrated that the group actually intended to hold their "big event" afterward at The Ellipse, not at the Capitol.

"There's no conspiracy," defense attorney John Hull said. "… So, [with] no conspiracy, about 80% of the whole case falls apart."

Prosecutors noted that Block's statements in the clips are contravened by the men's demonstrated actions that day, which included Nordean and Biggs tearing down a police barrier. They also reminded the judge of encrypted texts the men shared that day preparing for insurrection on January 6.

Prosecutors warned that the defendants' release would mean "there's no way to police" any other potential planning the men might participate in with other Proud Boys members: "That's a significant, prospective danger to the community," Assistant U.S. Attorney Jason McCullough said.

In other January 6-related developments:

  • Accountability arrived for the Capitol Police officers who behaved as congenial hosts to the insurrectionists on January 6. The agency announced it had taken disciplinary action against six officers following an internal investigation.

There were 38 internal investigations involving officer behavior on January 6, with 26 different officers identified, Capitol Police reported. There was no wrongdoing found in 20 of the cases.

Three of the six officers were disciplined for "conduct unbecoming;" another for improper remarks; one for improper dissemination of information; and one for "failure to comply with directives."

"The six sustained cases should not diminish the heroic efforts of the United States Capitol Police officers. On January 6, the bravery and courage exhibited by the vast majority of our employees was inspiring," the release said.

  • FBI agents arrested a woman from Allentown, Pennsylvania, who had filled her social-media pages with QAnon conspiracy theories and demands for an "Army of Patriots" to seize control of the government, prior to invading the Capitol with other right-wing extremists on January 6.

Prosecutors detailed Kelly O'Brien's prolific rants on social media leading up to January 6. One dated November 26, 2020, asserted: "We do not riot. We fight. We are an Army of Patriots. You will know us when you see us. There will be no ambiguity. Prepare yourself."

On Dec. 19, 2020, O'Brien posted: "WE ARE IN A BATTLE between GOOD and evil. Make no mistake about that. Elders are cheering us on and believe that WE ARE GOING TO BE THE GREATEST GENERATION in their lifetime. And they lived through WWII. Are you going to fight or are you weak. Let us know now. WE NEED PATRIOTS! WE NEED FREEDOM FIGHTERS! Now!"

The day after Christmas, another used posted: "You can vote your way into socialism but you have to shoot your way out of it!" O'Brien responded: "We might have to."

After the insurrection, on January 8, amid a discussion of Trump's refusal to concede to Joe Biden, O'Brien asserted that "Everything is happening according to Q plan. So scared."

  • A former FBI special agent remarked on MSNBC that the insurrectionists' targets were chosen not by movement leaders or members, but rather by elected politicians like Donald Trump and Missouri Republican Sen. Josh Hawley.

"It's our political leaders that are doing this more than domestic extremists," Clint Watts, a Joint Terrorism Task Force veteran, said. "What you see right there President Trump told them they were going to the Capitol that day. They didn't pick the Capitol, he said it, his organizers they promoted it, his fellow congressmen in the GOP, they promoted it.

"It was Josh Hawley out there fist-bumping the crowd, right? Before it went in," he added. "That's the thing we look for to see, hey, where are they tipping to. For the most part, the groups aren't picking the targets. It's the elected leaders."

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