A federal judge has revoked bail for two leaders of the Proud Boys, a paramilitary right-wing extremist group, contending that newly revealed evidence of their role in the Jan. 6 breach of the Capitol has shown them to be too dangerous to remain free while awaiting trial.
Ethan Nordean of Washington state and Joseph Biggs of Florida are charged with conspiring to stop the certification of the 2020 election — and with organizing and leading dozens of Proud Boys to the Capitol, many of whom were among the earliest to breach the building.
“The defendants stand charged with seeking to steal one of the crown jewels of our country, in a sense, by interfering with the peaceful transfer of power,” Judge Timothy Kelly said as he explained his decision. “It’s no exaggeration to say the rule of law and … in the end, the existence of our constitutional republic is threatened by it.”
Kelly’s ruling reverses earlier decisions by federal judges to release Nordean and Biggs under strict conditions. In the government’s earlier bid to detain Nordean, Judge Beryl Howell described weaknesses in the case that had been presented, and prosecutors declined to present evidence supporting their most damaging claims — in part because they were preparing to unseal a graver set of charges against Nordean and other Proud Boys leaders. That indictment was issued in March, linking Nordean, Biggs and two other Proud Boys regional leaders — Zach Rehl and Charles Donohoe — in the alleged conspiracy.
Donohoe is facing a separate detention hearing later Monday afternoon.
Kelly, an appointee of former President Donald Trump, said new evidence presented by prosecutors showing Nordean and Biggs’ men’s central role in orchestrating the incursion was a decisive factor in his ruling. He delivered a painstaking retelling of the case against the two men, reciting their profanity-laden social media posts vowing violence against lawmakers and others preparing to certify the results of the 2020 election, as well as their private communications revealed by prosecutors as the investigation unfolded.
Prosecutors say Nordean took on an expanded leadership role in the group on Jan. 4, after the Proud Boys’ national leader Enrique Tarrio was arrested upon arrival in Washington, D.C. on charges stemming from violence at an earlier pro-Trump protest. They say he helped craft the group’s tactical strategy for Jan. 6, encouraging them to divide into smaller groups and overwhelm outmatched Capitol Police. Prosecutors also spelled out efforts by the group to cover their tracks after Tarrio’s arrest, dropping earlier private messaging channels and opening up new ones.
Biggs, per the government’s case, was an on-the-ground leader in the days leading up to Jan. 6 and that morning, a point of contact for dozens of Proud Boys who traveled to Washington, D.C. for the march to the Capitol. Nordean and Biggs were among the earliest waves to arrive at the Capitol and were present when a police barrier was overrun, leading a wave of rioters to press closer to the building.
Nordean and Biggs, according to prosecutors, are also on the hook for significant damage to the Capitol caused by fellow Proud Boy Dominic Pezzola, who smashed a window with a riot shield early in the siege. Pezzola’s action, a central feature of many of the Capitol prosecutions, led to one of the earliest breaches of the Capitol.
Kelly acknowledged there was no evidence of Nordean or Biggs ordering specific criminal acts, such as the breaking of the window, but the judge said that wasn’t critical to the strength of the case.
“Those things are not necessary for a conspiracy case to be relatively strong,” Kelly said.
Kelly also described the challenges of prosecuting a conspiracy case based on circumstantial evidence — a fairly common reality since criminal conspirators rarely document their plans explicitly. But Kelly said the overwhelming volume of evidence showing that a plan existed — even if its specific contours are not entirely clear — show both men had strategized about how to stop the certification of the 2020 election.
During his lengthy ruling, Kelly joined a chorus of judges who have criticized the former acting U.S. Attorney in Washington — Michael Sherwin — over an interview last month in which he said he believed the evidence in the Capitol riot cases justified sedition charges that have not yet been filed.
“Obviously, this was a highly unprofessional interview that Mr. Sherwin gave,” Kelly said. He noted that the comments by Sherwin, who was replaced last month as head of the Capitol riot probe, have been referred to Justice’s Office of Professional Responsibility for investigation.
“I am going to warn all sides here that comments that violate the local rules of this court — I’m certainly not going to put up with anything like that from the attorneys who have entered their appearance in this case from this point forward,” the judge added.