Thread by @ZoeTillman

A hearing is about to start in the case of Joseph Biggs and Ethan Nordean, two alleged Capitol rioters charged in the latest Proud Boys conspiracy case — they'd been granted pretrial release, but the govt is now arguing they should be held in light of the new charges + evidence

Biggs and Nordean are arguing the govt's new evidence (the govt focuses on messages exchanged before/during 1/6) doesn't actually speak to the grounds the govt is arguing for detention — which involve allegations they were involved with property destruction — or dangerousness

To link Nordan and Biggs with the property destruction element, AUSA Jason McCullough ties them to Dominic Pezzola, who is charged with using a riot shield to break a window — McCullough says Pezzola is a coconspirator who is just charged in a different indictment

To be clear: Charging docs link many of the defendants with Proud Boys connections to one another, but they're not all charged in a single conspiracy case like the Oath Keepers. Pezzola isn't a co-defendant with Nordean and Biggs in their case as of now

McCullough argues that because Nordean and Biggs were involved in preplanning and then took a lead role on Jan. 6 and shook metal barriers to knock them down, that showed other Proud Boys what the expectations were - "to break things if necessary"

McCullough argues Nordean poses a danger going forward if he's allowed to stay out of jail, not only given his role in planning for Jan. 6 but his lack of remorse after — quotes a message EN posted online that stated, "if you feel bad for the police, you are part of the problem"

McCullough makes basically the same set of arguments about Joseph Biggs, and says if he's left in home detention there's no way to fully monitor his communciations in a way that would protect the public

Judge Kelly indicates he's not totally sold — playing "devil's advocate," he spends a while listing weaknesses with govt's position:
- no evidence of bringing weapons
- "pretty muted" evidence of violence
- planning messages don't draw a clear line to violence/destruction on 1/6

And there's the DC Circuit opinion in Munchel, Kelly notes, which directs judges to consider the uniqueness of the circumstances that led to Jan. 6 in considering whether a particular defendant poses a danger going forward (see: buzzfeednews.com/article/zoetil…)

McCullough focuses on evidence that Nordean and Biggs led a group to the Capitol, and set precedent by knocking down a barrier. Kelly says the leadership arg is the govt's strongest, but still wants more about how it ties to specific violence that day and speaks to future danger

Norden's lawyer argues that the govt has presented a tenuous argument about his connection to property destruction, and that prosecutors are way overselling what a video (which the judge will see later) shows as far as them shaking/knocking down a barricade outside

As for the govt's new evidence of group chats that show preplanning, Nordean's lawyer Nicholas Smith argues the govt is cherry-picking messages and also that it sets a bad precedent to punish someone for what someone else says in a group chat that includes dozens of people

Joseph Biggs' lawyer Dan Hull adopts the bulk of Nordean's arguments against detention, and focuses on Biggs' record of compliance with his pretrial release conditions over the past 11 weeks, and says that underscores his arg that he's not a danger to the community

On rebuttal, AUSA argues that as far as future threat of organizing, it's true Congress won't be meeting again soon to certify election results, but there are other reasons Congress could be in joint session (like a state of the union) and there are statehouses to consider too

Judge Kelly isn't announcing a decision now after hearing arguments re: the govt's motion to detain Joseph Biggs and Ethan Nordan. The govt is submitting a video they referenced, and the parties can file brief supplements, then the judge will have them come back 4/9 to rule

Meanwhile, over in another virtual courtroom...

https://twitter.com/rachelweinerwp/status/1379484039493648384