A federal judge on Friday night granted the Justice Department’s request to dismiss the seditious-conspiracy case against four top members of the Proud Boys who led a violent mob into the U.S. Capitol on Jan. 6, 2021.
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But in his ruling, U.S. District Judge Timothy J. Kelly gave a stark warning about President Donald Trump’s efforts to lift penalties against those who instigated and carried out the storming of the Capitol. The attack — by the mob seeking to overturn Trump’s loss to Joe Biden in the 2020 election — left more than 140 police officers injured and caused an estimated $3 million in damage.
The judge indicated he was wiping out the Proud Boys’ charges — against Ethan Nordean, Joseph Biggs, Zachary Rehl and Dominic Pezzola — under protest, saying legal precedents left him no choice but to accede to the request by the Trump administration’s prosecutors.
“As the Court has said many times, the attack on the Capitol on January 6, 2021 was a perilous event,” wrote Kelly, who is a Trump appointee.
“It was an attack on people, including police officers, many of whom were injured. It was an attack on a coordinate branch of government — Congress — that the Founders saw fit to give a place of primacy in Article I of the Constitution. And it was an attack on the Constitution’s mechanism to facilitate the peaceful transfer of power from one president to the next.”
The Jan. 6 riot followed a rally where Trump repeated his false claims that he won the 2020 election. As rioters rampaged through the Capitol, lawmakers were forced to evacuate, delaying the certification of Biden’s victory for hours.
Friday’s ruling wipes out some of the most serious criminal charges from the riot, cementing Trump’s bid to unravel the largest Justice Department investigation in U.S. history.
Trump pardoned nearly all the rioters — more than 1,500 — who were charged by the Justice Department in the wake of Jan. 6. But that blanket pardon, issued on the president’s first day in office last year, did not extend to about a dozen leaders and prominent members of two extremist groups behind the violence, the Proud Boys and the Oath Keepers.
Those defendants were convicted of carrying out a seditious conspiracy against the United States or related offenses. Trump initially commuted their prison terms, stopping short of a full pardon. But this year, while those cases were being appealed, Justice Department officials filed legal papers to vacate the convictions altogether.
The D.C. Circuit federal appeals court granted that request in May. U.S. Attorney Jeanine Pirro, a Trump ally who serves as the top federal prosecutor in D.C., then filed motions to dismiss the underlying charges in U.S. district court.
Kelly said in his opinion on the Proud Boys case that judges are constrained to dismiss charges once prosecutors ask to drop them.
Under Supreme Court precedent, prosecutors have “exclusive authority and absolute discretion to decide whether to prosecute a case,” and they may drop charges “in the interests of justice” even after defendants have been convicted.
The moves by the Justice Department were unusual — prosecutors rarely ask to throw out guilty verdicts — and Pirro’s office initially did not give detailed reasons for scrapping the highest-profile cases related to the Jan. 6 attack.
In a brief court filing, a prosecutor in Pirro’s office wrote only that the government “has determined in its prosecutorial discretion that dismissal of this criminal case is in the interests of justice.”
Proud Boys leader Enrique Tarrio separately had his conviction vacated and charges dismissed last year, also at the Justice Department’s request. Tarrio, who had been convicted of organizing members of his group, was not present at the Capitol on Jan. 6.
Pezzola was acquitted at trial of the seditious conspiracy charge but convicted of assaulting a police officer and other offenses from the riot.
“We took the worst they threw at us the raids, the solitary, the lies and we stood tall,” Tarrio posted on X after the ruling was issued Friday night. “Trump dropped the pardons and now the rest is crumbling. Justice is SERVED!”
Before dismissing the set of charges against the Oath Keepers, U.S. District Judge Amit P. Mehta, an appointee of President Barack Obama, asked Pirro’s office to supply detailed reasons for its request. Mehta has not yet issued a ruling on the Oath Keepers’ charges.
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A prosecutor, G.A. Massucco-LaTaif, said Trump’s blanket pardon proclamation also directed the Justice Department to drop all pending charges stemming from the Jan. 6 attack. Prosecutors can no longer put any Jan. 6 defendants on trial and judges cannot effectively impose any prison time, he wrote in a court filing, because the presidential proclamation would immediately kick in to prevent those outcomes.
“In any event, the public’s interest in a trial of these defendants has already fully vested,” Massucco-LaTaif wrote. “This Court presided over two public trials of the charges in this indictment. … Dismissal of these cases with prejudice will not erase this public record.”
The president and top officials in his administration have moved aggressively to recast and minimize the threat posed by the mob of Trump supporters on Jan. 6.
Earlier this year, the Justice Department acknowledged that it had deleted reams of news releases it had posted online, which detailed the prosecutions of those charged in the riot.
The Washington Post identified several webpages that led to error messages, including news releases about the arrest and conviction of Tarrio and other rioters whose convictions were undone by Pirro. The Justice Department said in a social media post that it was erasing what it considered “partisan propaganda.”
“We are proud to reverse the DOJ’s weaponization under the Biden administration,” the department posted on its rapid-response account on X. “We will do everything in our power to make whole those who were persecuted for political purposes. This includes stripping DOJ’s website of partisan propaganda.”
Copies of hundreds of those news releases, which had been hosted on the website of the U.S. attorney’s office for D.C., have been archived by an independent website, the Internet Archive’s Wayback Machine.
A spokesperson for Pirro did not say who ordered the deletions or how many releases were affected, referring questions to Justice Department headquarters. A searchable database of all charges and convictions stemming from the Jan. 6 investigation was taken offline by the Justice Department last year.
Pirro has denounced political violence in other cases, such as the incident this year in which a lone gunman allegedly tried to assassinate Trump during the White House correspondents’ dinner, but routinely declines to take questions about the Jan. 6 riot at her public appearances.
She has also pursued Trump’s perceived political foes with shaky allegations of misconduct, including then-Federal Reserve Chair Jerome H. Powell as well as six Democratic lawmakers who angered the president by posting a video on social media reminding U.S. service members that they could refuse illegal military commands. A grand jury refused to indict the six Democrats, and Pirro closed the investigation into Powell after failing to find evidence of a crime.
In addition to the pardons, commutations and court filings seeking to dismiss cases, Trump appointees have fired many of the FBI officials and prosecutors who investigated the attack.
The Justice Department has also taken steps to vacate the conviction of Stephen K. Bannon, a former Trump adviser who was convicted of contempt of Congress for defying a subpoena related to Jan. 6. And the department has stopped defending a similar conviction for Peter Navarro, a top trade adviser to the president who is appealing his case.
The Trump administration had announced plans for a $1.776 billion fund to provide payments to people who claim they were unfairly targeted by law enforcement, and dozens of Jan. 6 rioters said they intended to apply for a cut of the money. The payments would have been funded by taxpayers, raising bipartisan concerns in Congress. A federal judge issued an injunction blocking the “Anti-Weaponization Fund” from being established, and Trump administration officials have said that effort is dead.
In dismissing the Proud Boys’ seditious conspiracy charges, Kelly invoked remarks from President Ronald Reagan’s first inaugural address in 1981 describing the peaceful transfer of power as a miracle of self-governance.
“President Trump’s views about the prosecution of those who attacked the U.S. Capitol on January 6 — whether those views are based on fact or fiction — are well known, as is his intention to extend clemency to them through the Executive Order,” Kelly wrote in the opinion.
“Moving forward, if this Nation’s experiment in self-government is to last another 250 years, the American people — no matter their partisan preferences — will have to act together to preserve, protect and defend that miracle through our constitutional framework,” he wrote.
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