Thread by @Brandi_Buchman

Good morning. It is the 33rd day - wow - of the Proud Boys seditious conspiracy trial and I am back on the beat for @emptywheel. Live coverage starts at 9 am ET. Later this week, I will have a write up. But first, more minute by minute reporting from the courthouse. Join me?

We enter another trial day and I must say: yesterday struck me as one of the more damning days for Proud Boys and one of the more successful ones for prosecutors. Much, if not all of this, IMO, hinged on prosecutors advancing their 'tools' theory. More:
emptywheel.net/2023/03/07/pro…

Prosecutors say that about 2 dozen non-defendant associates and/or members of the Proud Boys were utilized as blunt “tools” by PBs on 1/6 to help them pull off the scheme to stop Congress from certifying the 2020 election. Judge Kelly has already approved the tools theory and...

on Monday, he agreed to admit significant evidence collected by the prosecution involving several of these so-called "tools" that Proud Boy defendants allegedly relied on for Jan. 6.

So, in light of this, what was so striking about what came out yesterday?

Well, this moment, below, was pretty jarring.
It was the first time I can recall seeing evidence that appeared to clearly indicate just how organized Proud Boys were on 1/6 and how they seemed to perfectly understand the positioning of their forces.

https://twitter.com/Brandi_Buchman/status/1633197491343577091?s=20

Another key moment - jurors saw footage from the Peace Circle yesterday both before and after Proud Boys arrived there on the morning of the 6th.
Arguably, and as the videotape shows, the crowd was pretty calm there. Until Proud Boys showed up. And then the dynamic shifted.

FBI Special Agent Nicole Miller will retake the stand this morning and AUSA Erik Kenerson will continue his direct examination.
If I'm wagering: It ought to be a fraught cross.

Apologies -- higher up in thread, I said Monday. I meant Tuesday.

And away we go.

Judge Tim Kelly is on the bench.

Judge Kelly begins by asking Nick Smith if we have resolved the headphones request he made yesterday. There's evidence that Smith really wants the jurors to hear through headphones because he says the crosstalk on the audio makes playing it on a speaker less than ideal.

The court is already stretched thin with resources for this case and several others (There are 7 or 8 jury trials happening simultaneously here). Smith, it sounds, purchased headphones for the court but they aren't sufficient. So we're back to square one: turn up the volume!

Carmen Hernandez, for defendant Zachary Rehl, has objections over testimony delivered on Monday by FBI Agent Nicole Miller. Yesterday, Miller testified that a voice saying "fuck it, let's storm the capitol" overheard in footage was Rehl's voice and then later, she said...

It was "consistent with Rehl's voice..."
Hernandez wants the court to give instruction that "consistent with" is not the same as "identification"

Kenerson: Govt made clear at bench conference about the later statement, we viewed her stmt as consistent with, especially after going back and recognizing Rehl's voice, we viewed that as an identification and we moved on at that pt. we said that at bench conference...

Ken: we can go back and ask a similar series of questions if the court is considering striking it
But a witness saying a voice is consistent is relevant evidence that a jury could use to make their own determination because they have heard they'll hear lots of...

Kenerson cont.: ...evidence of Rehl's voice because of the MOSD voice msgs, voice msgs sent on Telegram, various videos he filmed.

Judge Kelly says if Hernandez can bring him case law to support her objection, he'll reconsider having overruled her objection yesterday.

Nick Smith for Ethan Nordean now wants to discuss scheduling of defense witnesses. There are some questions over when defense will begin; govt said over the weekend it expected at least 3 more witnesses. Some defense witnesses coming from west coast, not including those who...

filed a motion to quash... Smith wants a grace period for some witnesses next week for Nordean who has to present witnesses first OR a definitive stmt from govt that there will be no further witnesses from their side coming.

Kelly: let's talk about this at the end of the day. we will have another day's worth of data on how far along things are

Norm Pattis, for Joseph Biggs, says he's concerned about Tucker Carlson's broadcast re: J6 videos. Pattis notably calls it Carlson's "understanding" of the Q-Anon Shaman aka Jacob Chansley (aka Angeli)

Pattis: "I'm outraged by what Tucker Carlson said and I don't think any reasonable person who sat through this trial could conclude there was anything other than violence" that occurred on 1/6.

Pattis says re Tucker Carlson and J6 footage: "I'm worried a jury will hear this and take it out on our clients....The events are becoming politicized... I'm concerned the smallest whiff of this is going to hurt fair trial rights..."

Judge Kelly asks government to chime in about defense request for instruction re: Tucker broadcast.
AUSA Jason McCullough: No instruction is necessary. We've known from the beginning of this case, since jurors came in and completed a questionnaire...

McCullough cont.: "...through voir dire. This case is about Jan. 6, you've admonished them a number of times about these defendants. There is no additional information, whether it's the Jan 6 report or additional comments about referrals for prosecution...

McC cont.: "...there's nothing about any of that, that distracts or would undermine your honor's instructions to these jurors. There's nothing material that's happened here with respect to what any member of the media may say about this case or about Jan 6 generally...

McCullough: "We are so far afield, it's a distraction. We should bring the witness in and get moving.
We're always talking about getting this case moving, we shouldn't be sitting here talking about what Tucker Carlson said."

Kelly agrees with prosecutors, saying jury has known from beginning this case had to do with Jan. 6 etc.

Carmen Hernandez suggests Tucker Carlson may have more information or evidence than they do (this is exceedingly unlikely) but in any event, Kenerson says if defense suggests this, then they should put it in writing for the court to address it

FBI Special Agent Nicole Miller is now back on the stand. Next two witnesses for the govt, when we get there: will be a police officer (Officer Carrion) forgive me, I don't have the first name handy and then FBI Agent Peter Dubrowski returns.

Kenerson: When we left off yesterday, I think we were talking about the area at the front of the scaffolding.

Miller/Kenerson remind the jury about the demonstrative map using color-coded markers for each defendant. It's a helpful visual since it shows PBs movements clearly

"Hey Milkshake!" is heard in a moment of footage played.
When else did we hear this name shouted?
Miller says it was heard at Washington Monument (where PBs met morning of 1/6) and again among the PBs marching group toward the Capitol

Miller counts about 7 members of the PB marching group in video footage now playing for jurors. It's near the TV tower that was erected by the Capitol. the crowd is thick and they are chanting "USA"
Next video is from same location....

In this clip, Miller draws a circle around a man with his back to the camera but his scraggly hair and clothing are easily recognizable at this point in the trial - it's Dominic Pezzola.

Kenerson: Are there members of the marching group in this shot (near Pezzola)?
Miller says there are and she proceeds to circle at least six additional people around Pezzola (These are the "tools" of the conspiracy, according to govt)

Now at entrance to scaffolding at Capitol. The stairs under them lead toward a plaza closer to the Capitol itself.
Kenerson plays a clip that shows roughly 4-5 police officers at the entrance to scaffolding. They are wildly outnumbered.
In clip, Charles Donohoe is ID'ed...

Kenerson pauses the clip and Milkshake is now highlighted in the video. He is one of the very first people to rush the stairs. Charles Donohoe is right behind him. The scene is violent. Police are taking on projectiles. Donohoe and Pezzola are off to back right with riot shield

Police are retreating in video and jurors see Dominic Pezzola moving deftly up the stairs (it almost looks like he's taking 2 at a time) and Matthew Greene is right behind Pezzola.
Milkshake isn't far behind as the mob moves tightly up the stairs. On stairs? William Pepe.

Kenerson plays more footage for Miller. It's an exterior angle of the same video jurors just watched that showed PBs moving up stairs at scaffolding entrance way, pushing past police.

Miller orients the jury on the map, we're getting even closer to the Cap interior.
Miller IDs Dan "Milkshake" Lyons once again in this new video footage; he's off to the side and then in middle of crowd moving up stairs, she IDs Biggs, Fonticoba, Rusch, McDonald advancing fwd

Biggs, Fontincoba, Rusch, McDonald enter the scaffolding as the footage plays ahead.
This is seconds after the breach, Miller says, before Kenerson queues it up.
A man appears dead center heading under scaffolding, raises his hand, make the "OK" hand sign, yells "We did it man"

The footage under the scaffolding continues and jurors are seeing Proud Boys and members of the marching group that accompanied them making "OK" hand signs to each other.
Then Chris Worrell appears in frame and without hiding his face, he yells ""Yeah, taking the capitol!"

About Mr. Worrell:

https://twitter.com/emptywheel/status/1633403234722127880?s=20

Kenerson continues to play the footage frame by frame and asks Agent Miller to ID people as scaffolding breached:
Chris Worrell, Milkshake are IDed by Miller; they're accompanied by 3 other people that were part of PB marching group to Cap. (This footage is from 1:49 pm on 1/6)

Now in next still from video footage where mob faces scaffolding as it is being overtaken; Nordean is IDed in crowd. He's looking at scaffolding, he's unmistakably pointing in direction of scaffolding. Near to him: Paul Rae, Arthur Jackman and member of marching group

Now, footage from the scaffolding shows defendant Joe Biggs. He doesn't appear to be climbing, but he's standing and facing the mob. He's also pointing and Miller says he's pointing in direction of Nordean.

In crowd, Nordean and an individual IDed as Jason Giarno (sp) are seen in crowd. Miller says Giarno was in PB marching group and when pedestrian barricades were breached.
The footage shows Nordean/Giarno hugging.

Jurors see PB texts that were flowing at same time between Jeremy Bertino, Johnny Blackbeard (John Stewart) others. They are celebrating "awesome" siege
Bertino: I have tears in my eyes
Other PBs: "They are way up the stairs" "Yes they are taking it back"
Stewart: Accelerate!

Text between Rehl and "Damon" and 'John SI" shown to jurors.
Rehl says at 1:50 p.m. he's right by the tower, he's still on the front lines.

Kenerson shows footage of Joseph Biggs next. He's carrying what appears to be a piece of the metal fence that was ripped up from the concrete earlier. Miller reviews video and notes Biggs hands off the metal bar to someone else. Also in frame: Fonticoba, Rae

Also in frame is Trevor McDonald (alleged tool of the conspiracy) and beside him is Ethan Nordean

Footage continues, jurors see a barricade being utterly dismantled.
This is video seized off device belonging to Nicholas Ochs. This is from approx 2:06. Kenerson asks for this to be muted and played at half speed
LARGE pieces of fencing SOAR thru air toward police

In next clip, jurors hear someone Agent Miller IDs as Dominic Pezzola. He's screaming:
"You better be fucking scared. Yeah you better be scared. We ain't fucking stopping. Fuck you you better decide what side you're on motherfucker, you think antifa's fucking bad, just you wait"

Kenerson: Have we heard references before to picking sides?
Miller: We have, when the marching group when past the shack where officers were putting on riot gear.

https://twitter.com/Brandi_Buchman/status/1633134234893271041?s=20

Now, a few minutes later, Agent Miller says Dominic Pezzola can be heard again. This time he's saying: "Why don't you shut up ok, i took this from a fuckin cop, alright, shut the fuck up"
"This" would be the riot shield he allegedly stole

Now, more footage (From nigrotime) and Agent Miller IDs in clip: Paul Rae, Fonticoba, Nordean, McDonald, Nordean, Biggs.
Before we proceed, Nick Smith for Nordean objects saying Miller has falsely IDed someone in the shot.
There's a sidebar and husher is on.

Sidebar over. The video from nigrotime continues; crowd is heavily gathered near scaffolding, Trump flags flying all around.
Miller notes there's a flight of stairs leading to the upper west terrace of the Capitol in the shot. On the ground just below, she IDs Biggs....

On the ground, the crowd has laid bike racks vertically against the facade so they become ladders they can use to scale higher walls leading to upper levels of Capitol terrace exterior.

Arthur Jackman and another individual from marching group are IDed.
Jurors see how the crowd is starting to quickly climb up stairs by using the makeshift bike rack ladders. There's plumes of what looks like smoke above them. Biggs still on ground nearby. And so is Nordean.

Nate and Kevin Tuck, Ethan Nordean and two members of the marching group are then highlighted in footage by Miller from this scene

Now, new video angle. Jurors are seeing inside the scaffolding and the scene is increasingly chaotically. I spy in the crowd coming up the stairs Aaron Mostofsky in his caveman get up. Jurors see yet more grossly outnumbered police holding back barriers as long as they can...

This alcove on upper level is the last line of barricades between the mob and the Capitol, Miller affirms.
After this breach, defendant Joe Biggs climbs the wall and heads toward the upper west terrace.
(Also in vicinity is Dominic Pezzola)

After scaffolding has been breached, as people are climbing up stairs, footage POV is from the lawn, looking upward. Traffic cone flies through air, plumes of smoke, flags prominent as mob is advancing up stairs at a rapid clip, ppl climbing over marble walls,

Miller IDs Paul Rae, Joe Biggs and Gil Fonticoba climbing up bike rack ladders to scale the Capitol before Biggs will go to upper west terrace. Biggs goes before Fonticoba up ladder and its Fonticoba who is clutching onto his legs as they ascend.

Once atop this level, Rae is in front of Biggs on the stairs. These are the same stairs, Miller testifies, that Dominic Pezzola went up.

Now, jurors see insurgentUSA video footage. It shows Joseph Biggs all the way atop the upper west terrace. Both of his arms are raised as if he celebrating triumphantly and he strides across the UWT plaza.
Miller says he is "celebrating."

Now same location, but from a different angle. Looking upward toward the terrace from the lawn. Paul Rae and Biggs are seen waving arms wildly, celebrating. As if signaling to someone on ground, Rae points next to the stairs that he and Biggs just climbed

Now, from the lawn, Miller IDs Ethan Nordean appearing in footage. He's looking in direction of Joseph Biggs above him. Meanwhile, people are climbing up the marble facade and exterior of staircase

Miller now pulls up a photo of Biggs, Paul Rae and another member of the marching group. Biggs is taking a selfie from the top of the upper west terrace. Behind him is Rae, standing on the ledge.

Now jurors see Biggs take that selfie in footage from the upper terrace.
It is 2:12:33 p.m.
Security footage shows Biggs and Rae embracing and they start walking toward direction of Pezzola

Now Kenerson brings up video recovered from defendant Zachary Rehl's phone.
Metadata says this is from 1/6 at 2:13:14 p.m.
The camera is facing towards the capitol, still on the lower level areas, facing upper west terrace that had just been breached.

Now footage from BGontheScene.
This is the moment Pezzola smashes apart a window with a riot shield and enters the Capitol.
He hit both panes of glass with the shield and smashed out one window leaving it "unattached to its frame," Miller says.
Then rioters start streaming in

Proud Boy Dominic Pezzola, Agent Miller testifies, is helping rioters thru a window after he smashes it open
AUSA Erik Kenerson: At this point, had rioters entered the building?
FBI Special Agent Nicole Miller: They had not.
She adds: Pezzola was approx. 5th or 6th person inside

Now Judge Kelly calls for our morning break.
We will return in 10 minutes.

We're back.

Kenerson now pulls up video footage from the Capitol interior. This is at the Senate wing doors at 2:12 pm. We see rioters approach, hitting windows with fists and other materials. Then suddenly, a window crashes apart and scatters on floor inside. Pezzola cant be seen yet.

A police officer walks up to the window that has just been broken open. A man hops in, then another two ppl in tactical gear, then a couple more and then Pezzola enters. Behind him, Doug Jensen, the man who chased down Officer Goodman.

After Pezzola smashes open window, lets other rioters in, then crawls in, it's seconds before another window is broken apart, rioters come in and then they pour through entranceway. Miller IDs those in PB marching group. Pezzola is on his way to Ohio clock corridor.

Rae, Biggs, Fonticoba come in through a busted door in this same hallway moments after Pezzola had entered.
Miller IDs Biggs and Kenerson asks what expression is on his face.
"He looks happy," she testifies.
It's 2:14 p.m. on 1/6.

MOSD Main 2 chat (for PB members)
2:19:39 Fonticoba sends a text to group: "We just stormed the capital"
PB with handle "President Elect Leo Kuznetsov" sends a link in response.

https://twitter.com/jazmineulloa/status/1346898566703435779?s=20

Then writes: "My dick is going to explode"

Jeremy Bertino in this same thread with Kuznetsov sends a msg, but its blank indicating it may have been deleted. Then Bertino sends another "they are innnnn"

Recall - Gilbert Fonticoba would later meet Henry Tarrio at his hotel on night of 6th.

Jurors see more footage from the Capitol interior, the camera follows Pezzola as he stalks the hall.
AUSA Kenerson plays the clip at regular speed, then frame by frame. Pezzola goes up the stairs, Miller testifies
Then, a picture of Pezzola in OH clock corridor:

More video footage. We see red capped rioters walking through the halls of the Capitol, a woman screams fuck you loudly, unclear at who. Then, Joe Biggs appears on camera. He drops his mask and looks to lens and says "This is awesome."

Agent Miller uses the demonstrative aerial map of the Capitol to show the jury the route Biggs took once he was inside the Capitol.
Now, in footage recovered off one of Paul Rae's devices.
Kenerson asks Miller about how she got familiar with the voices of PBs and others...

She went through voicemails and videos where they were speaking to familiarize herself.
The video now plays, Miller IDs Paul Rae. Behind him is Fonticoba. This angle is from right behind where Pezzola had smashed open window and where Biggs went in through door moments later

Footage continues. As Rae, Biggs enter the Capitol, Rae is heard on video saying: "Where is Pelosi? Holy shit."
Once they got in, Miller testifies: they hit up a snack shop inside nearby.
Kenerson elicits testimony - they did not pay for whatever they took.

As footage continues, Paul Rae remarks with some shock "they're arresting people!"

Moving onto footage from senate carriage doors. It's 2:15:50pm; Biggs and McDonald are visible in carriage hall. Law enforcement begins to approach. As cops come, rioters turn and walk away

In carriage hallway, Agent Miller IDs several people for the jury: There's Biggs, Rae, McDonald and two members of the marching group

Then there's a man in footage from carriage hallway carrying a baton as he walks away.
I didn't hear Agent Miller ID this person.

Now more nigrotime footage. We're back outside on the north side of the Capitol on the lawn.
Agent Miller IDs Nate and Kevin Tuck and Arthur Jackman. They were with Nordean and Biggs earlier.
Eddie George, FL PB, appears on screen suddenly to join them as they walk on lawn

Its 2:23:22 p.m. on 1/6. Capitol surveillance video now.
Vantage: east side of Cap, through doors that Biggs just exited. Loo and king down from above.
Miller highlights Biggs and the Tucks now on the ground.
Kenerson then asks if there were clashes with police inside?
M: Yes

Back inside the Capitol now.
In footage from rotunda, we see Gabriel Garcia of Miami, Florida (same homeplace as Tarrio) and he says:
"We just stormed the Capitol!"

There's a chant of USA that goes up, police are, as ever, clearly outnumbered in the rotunda and the mob is mad. Police are screaming hold the line, extending their arms to form a line. Someone screams stop pushing to no avail.

Kenerson brings this back around to Ethan Nordean again.
In footage, it's now 2:23:56 on 1/6 and camera vantage is pointed at same set of stairs that Biggs and Rae just climbed.
Miller IDs Nordean ascending stairs.
How'd he do that?
Miller: He was helped by other people there

I will note, as Nordean is ascending the stairs to storm Capitol, along with dozens and dozens and dozens of others, there's a man standing on a ledge hoisting a massive Trump flag and he's motioning with it like he's waving people inside.

Pezzola left OH corridor, moved thu halls and then eventually went to the area he came in; the senate wing door. In footage, Pezzola is walking, clutching police shield and appears like he is looking for someone, he's pacing a bit. He looks out busted window. Then...

Agent Miller testifies that Pezzola appears to hold up a radio to his head to talk to someone.
Then he left the hallway and went to the crypt next.

Now, Kenerson moves Miller's attention to photos from outside taken by Rehl. It's by the stairway and Miller testifies that metadata shows photos were taken at 2:26 and 2:27 p.m.
From there, Rehl moves next to the upper west terrace.

Kenerson plays the video seized from Rehl's phone.
Kenerson: Was Rehl by himself on upper west terrace?
Miller: He was not. He was with people he came with. Some are Proud Boys. I don't know about others

Now, a photo is shown of Rehl, Finley, Giddings, (phonetic), an unidentified person (surprising to me) and Rae and another person whose name I didn't catch. They're making the Proud Boys hand gesture. This was taken at 2:30 pm.
Biggs is on east side of Capitol at this time

Now in a clip recovered from Biggs' Google Cloud, Miller says Biggs is heard saying "we stormed the capitol."
Jurors then see selfies Biggs took He took a lot of selfies!); he's with Rae, Kevin Tuck, Eddie George and Arthur Jackman.
They're making the "OK" hand signs

At the time of this selfie, Miller testifies, Pezzola is in the crypt

Now, CCTV footage shows Pezzola inside the Capitol crypt. Pezzola is smoking, the police riot shield in tow.
Kenerson zooms in. It is 2:34:20 p.m. Agent Miller testifies that Pezzola has his phone in his hand, films as he walks in a circle, and then puts it away.

This is the moment that jurors have seen before. It's the video of Pezzola smoking. 2:34 p.m. Recovered from Rehl's phone:

https://twitter.com/rparloff/status/1633512973846331393?s=20

Now, Tarrio wasn't on Cap grounds on 1/6. But he was posting on Parler. @ 2:35, Tarrio posts a pic of the emperor from Star Wars, writes:
After I finish watching this, I'll make a stmt about my arrest but for now I'm enjoying the show. Do what must be done. (hashtag) WeThePeople

More nigrotime footage now. This is from the Columbus doors.
You maaaaay recall this detail about these doors from the Oath Keepers trial Part I:

https://twitter.com/Brandi_Buchman/status/1585291244585877504?s=20

In footage from outside Columbus doors, as mob is pressing against them, trying to bust in, alleged PB tool of the conspiracy, James Haffner, has his hand raised and he's dousing law enforcement with some kind of chemical spray.
Where's Biggs? He's in vicinity.

In next shot, Miller circles Columbus doors and they are now open (this was done forcibly). Slowing footage down frame by frame, Kenerson has Miller ID Joseph Biggs and Arthur Jackman near doors. Jackman has his hand resting on Biggs right shoulder as they move ahead. Then...

Paul Rae appears in screen and then Eddie George.

I will note, I just spotted a flag that I hadn't noticed before. It's hoisted above people, including Biggs, as they push their way through the Columbus doors.
It's a white flag, blue top left corner with red cross in middle. Its meant to represent the purity of Jesus Christ.

Now footage from inside the area just beyond Columbus Doors. The crowd is shoulder to shoulder. Miller says Joseph Biggs and group he's with move up the stairwell near doorway and they end up going to the third floor inside Capitol.

Now, in footage from The New Yorker, still inside the area just beyond Columbus doors, there's a loud chant that goes up: "Treason!"
Biggs, Jackman and others are moving up stairwell. This is around 2:40 p.m.
Now we see the texts happening simultaneously...

It's 2:38 p.m. and on Parler, Henry Tarrio writes: Don't fucking leave.
2:41: Proud of my boys and my country.
Bertino and Tarrio are also texting privately at same time.
Bertino: Brother you know we made this happen

Bertino continues: I'm so proud of my country today
Tarrio: I know
Bertino: Love you brother! We did it!
Tarrio: Love you too brig

Now Chris Cannon PB text says, hey i told you we should have rushed the police on the 12th this could have been us but you're a [n-word]
Tarrio: this is so much better
cannon: are we a militia yet?
Tarrio sends voice nte: "yup"
Then texts: make no mistake (2:40pm) "We did this"

Chris Cannon then sends video to Tarrio. It's a minutes long video that features, among other images from WW2, Nazis marching, Nazis being saluted by Hitler.
Cannon then writes (presumably in reply to Tarrio's "we did this" remark) "oh, i know."

This chat between Tarrio and Cannon was found in the Skull and Bones chat

Kenerson plays footage from a hallway inside the Capitol now, where lawmakers offices would be.
Joseph Biggs is spotted in hte video walking through. This is still New Yorker footage. There's a divider in the hallway, like a rope you'd see at a theater

More surveillance vid, this is still the 3rd floor hallway jurors just saw Biggs walking through. But this is opposite side vantage. Biggs, Jackman and Tuck are IDed by Miller. Biggs then disconnects the rope dividers as he walks. This is at 2:42:20. He entered just 2 mins before

Now, footage from the hallway just outside the senate gallery. The chambers for the counting of votes is just on the other side. Biggs, Jackman, Tuck and George are in this area now and they start to go through gallery doors toward chamber interior

It's 2:43:34 as Biggs et al enter through senate gallery chamber doorways. Rioters are now on gallery ledge looking down onto chamber floor. Jackman is seen on video, he's recording with his cell phone. Then, jurors see a selfie that Biggs took from this same location.

And with that, we are on lunch.

After jurors leave, Nick Smith for Ethan Nordean calls for a mistrial. He objects to a montage that was included within PBs texts that showed Nazis. Smith says govts use is bad faith. He notes it was sourced, ironically, from a commentary on abuse of crim justice system

Every single defense attorney joins Smith's motion for mistrial.
AUSA Erik Kenerson is given a chance to respond, "I really dont understand where this argument is coming from. It was made exactly after Tarrio posted a voice note....

Kenerson: So it puts into context Tarrio's voice note. This is not like what some defendants have said about rebuking or that Tarrio wasn't paying attn. Tarrio sent a msg immediately prior to this.

Smith sounds pretty livid and and says its an "absurd" suggestion by prosecution that defense would have to go through every embedded link in evidence to verify what it is

Judge Kelly: It was certainly presented to you in a way that you could press play...

Nick Smith claims attorneys cant press play on these embedded links but I don't know about that.

If its one and the same exhibit, I can certainly press play on embedded links.

Kenerson: Tarrio made reference to what was posted in that chat... the notion that defense counsel would not focus on Telegram exhibits that included those msgs, rather than waiting to spring a mistrial motion after we play it, is absurd.
Kelly says he'll consider this on lunch

Pattis: Suggesting its our fault that we didn't find information about nazis buried in the documents.... I resent that

This is nowhere near the 1st time Nazis have been referenced at this trial literally by Proud Boys themselves

https://twitter.com/Brandi_Buchman/status/1623789352550637568?t=HuqaTPyHg84u3GqsRcItiw&s=19

Judge Kelly weighs in on the Nazi evidence: I think the admissibility of that video was close enough, it would behoove the govt - even though I understand they provided exhibits - to have raised it beforehand. At same token, we have a record in this case of very robust...

Kelly cont.: ...objections by defense to exhibits, including at times to things embedded in exhibits.
It would behoove the defendants to have objected to it beforehand. All of that said, considering 403, if it had been raised with me beforehand...

Kelly cont.: I would have excluded it under 403. I am going to strike it, but I will deny the motion for mistrial.

Kelly says he will have instructions for the jury saying the video wasn't sent from Tarrio or any other defendant in this case. They may not consider that video during their deliberations.

Sabino Jauregui for Tarrio says if there are other Nazi videos in evidence, they'd like to know about them....

There's some incredulous light laughter and Kelly, eyebrows raised says this isn't a joke and then he says: "If it's Nazis, let's talk about it beforehand."

Again, as I pointed out earlier, this isn't the first time nazis have been mentioned BY THE PROUD BOYS themselves. So, IDK, I'm not a lawyer, but if I was, I'm using a fine-tooth comb through evidence to search out anything related to nazis. But, I'm just a reporter

My largely irrelevant observations aside....

AUSA Kenerson raises the point: if they wanted to object to the video, defense attorneys could have done it on the spot once the video started playing. but they didn't....

Instruction: Members of the jury, before the lunch break, you saw a video depicting nazis that a member of the Telegram group chat sent to the group. It was not sent by Tarrio or any other defendants in this case, it's been stricken and you're instructed to disregard it

Kenerson says he's got at least another 45 mins to an hour with Agent Miller to complete direct examination.
Judge Kelly also says we have a hard stop at 5pm.

The jury has returned, they receive instructions re: the Nazi video and now Agent Miller is back on the stand.

Kenerson: just before lunch, we left off with a photo of Biggs in the senate gallery... Did Biggs and group he was with leave gallery thereafter?
Miller: They did.

Footage is shown. Starting at 2:25:45 p.m. just outside senate gallery doors on upper level. Zooming in, jurors see Biggs circled and behind him, Arthur Jackman emerging from a gallery door
Miller says the end up in offices across the hall, near chaplain's area

Nordean, meanwhile, went back into the rotunda.
Footage of this is now shown; it's another selfie. Nicholas Ochs, Ethan Nordean and Paul Rae appear left to right. The rotunda dome looms above them.
Ochs wasn't in marching group, but was a Proud Boy elder, member of MOSD.

Miller says Ochs, Nordean and Rae "appear happy" in the selfie in rotunda

Now text msgs between Bertino and Tarrio are shown beginning around 2:45:22
Bertino: dude did we just influence history
Tarrio: lets first see how it plays out
Bertino: they have to certify today or else its invalid

Tarrio at 2:46:26 p.m. on 1/6: sends a screenshot of his Parler account where he writes, "proud of my boyand my country" and "don't fucking leave."
Kenerson asks about how many ppl saw these posts. Proud of my boy =4.6k,
don't fucking leave had 16k views at time of screenshot

Now, footage from hallway near chaplains office. Kevin Tuck, Eddie George, Arthur Jackman and Joe Biggs are in hall, congregating near a door for a moment. When Biggs walks up, he stands next to a US flag. Jackman is fiddling with it before he removes it from its stand

Biggs is on his phone as the men exit the hallway, carrying the flag they removed from a stand. It's 2:49:33pm.
Now jurors see an image recovered from Biggs Google Cloud. It's another selfie from the chaplain hallway and he's holding the flag. Timestamp on photo 2:47

Now footage brings us back in hallway near senate doors, but jurors see it from the opposite end. Miller highlights Biggs walking, he's joined by Jackman, Tuck, George

A group begins running in the hallway in direction of Ohio clock corridor where Pezzola is. Eddie George was carrying the flag. It's around 2:51.
Rehl also went in Capitol. He went in same doors Biggs did. Pezzola went through window in sen. wing, Biggs went through door.

Its around 2:53 and the hallway near door Biggs first came through is now just massively crowded with rioters. Agent Miller identifies defendant Zach Rehl entering the Capitol. Two other people followed, one of them was Isaiah Giddings. Didn't catch other name.

Kenerson asks if there is footage of Rehl inside any of the offices at the Capitol.
There is, Miller testifies.
Now a video is played from inside @SenJeffMerkley's office. Rehl, Giddings stand side by side. People are smoking, thick haze. Taking photos, someone flips over lamp

Another photo from inside Merkley's office. Rehl is on his phone and smoking. There's a photo just above his head. It's a poster of the capitol city of Oregon and another map featuring the state of Oregon

In next photo, its 2:52:13 p.m. and we're back in Ohio clock corridor. Miller highlights area where Pezzola was earlier using a stick figure. Biggs, Jackman, still carrying flag taken from chaplain's hall now emerge and go toward area same stairwell that Pezzola took up and down

Next clip. Near same set of doors where Biggs exited the first time and he's about to exit again. Behind Biggs is Tuck, George and Jackman. They are still taking the flag out of the building at this time, breezing past magnetometers and a lone police officer

Now: Details on call logs from Henry Tarrio on Jan. 6
At 2:53:28: Tarrio calls Nordean; didn't connect. lasts 2 sec
2:54:01 Tarrio calls Biggs, didnt connect, 0 seconds
2:54:03, Tarrio calls Biggs, didnt connect, 2 seconds
2:54:36 Tarrio calls Biggs, connects. Duration: 42 sec

Was Tarrio still active on Parler at this time?
Agent Miller: He was.
Now jurors see exhibit from Parler:

2:57:04 on Parler, Tarrio posts photo of somebody on senate floor in chair
2:57:16, Tarrio then writes: "1776"

Footage goes back to THE senate wing door hallway at 3:04:20 p.m. on 1/6.
Rehl is circled. He's moving across the hall to another door. Rehl does not go behind that door, Miller testifies.

Where does Rehl go from here?
He goes to the crypt where we saw Pezzola earlier. Then he leaves. He leaves out the window that Pezzola smashed, Miller says. This was around 3:13 p.m., roughly, she adds.

Pausing live tweeting one moment.

OK I'm back

It's 2:58:58 p.m. and now jurors see footage from inside the Capitol rotunda on 1/6.
I notice some of our defense attorneys are very intently watching the presentation now and Pattis (Biggs) objects on 403 grounds; Smith (Nordean) says no objection from Nordean.

Agent Miller is showing the route from the doorway at opposite side of rotunda, along the wall is where Nordean, Tuck, Rae had entered. Biggs also came through this way. They stood close together for a moment and then...

As CCTV advances, Nordean is near a POW flag and he pulls his mask up over his face. Then, Miller testifies: the flag appears to be pulled down

Now text between Nordean and "Karin Drive In" from after 7:12 p.m. on 1/6
K: Hope your safe, everything been blocked for last hour, no live streams....
Nordean it was crazy we stormed the capital. I grabbed a flag from the building

"Karin Drive In" then tells Nordean, around 7:12 pm on Jan. 6:
"For once there was nothing negative at all about the proud boys today"

Now footage from rotunda after 3pm (timestamp SO SMALL in this shot i cant see it exactly): jurors see law enforcement start to enter rotunda and rioters start to group one 1 side, there's a woman circled who had met up Biggs earlier. Miller describes her demeanor as angry.

Jurors now see body cam footage starting at 3:06:22p.m.
Agent Miller identifies the same woman who entered with Biggs and then was later spotted with Nordean.
Nordean is seen as video plays, and he stands just in front of screaming woman whose saying "oath over paycheck"

Miller testifies next that in footage, a voice is heard saying: "You guys are a fucking joke."
Who is this? Miller says its Nordean.
Smith objects.

More footage from rotunda; it's the same screaming woman "oath over paycheck" but from a diff angle. This is still body cam footage.
On screen, Miller IDs Nordean, Rae, Nate Tuck, two women who entered with Biggs and Nordean.
Officer holds line against Nordean, he's not moving

Then a voice in clip says: "Thin blue line is dead."
Miller identifies this voice as Nordean's.
Nick Smith, his defense attorney, objects. There's a brief sidebar.
Agent Miller reaffirms, the voice is Nordean's

Now in hallway, jurors see Nordean, Rae, Tuck around 3:13 p.m. as Nordean exits on the east side of Cap
At this point, all the defendants are out of the bldg. Were ppl who marched with them still trying to get in?
Miller: Yes
Objection, vague. Sustnd.
Kenerson asks for sidebar

Objection overruled after sidebar.
So, were any of the ppl who marched with nordean biggs, rehl, still attempting to get in?
Miller, again: Yes

Now, footage from Just Another Channel. Its an entrance on west side but near center of inaugural stage. It's 3:16 p.m. As tape rolls, jurors see some people going out doorway, but others going in. AJ Fisher, FL PB, part of MOSD and marching groups, is at door heading in

Zach Johnson, FL PB and Miller testifies that he's part of Boots on Ground chat.
Kenerson asks her again what chat he is in. She repeats BOTG.
As footage plays, jurors see crowd forcefully push in unison at entrance to tunnel. In next camera angle...

jurors see the tunnel from deep inside it. Law enforcement in riot gear are packed tight.
There's an objection. Sidebar. Husher on.

Sidebar over and this is now the most graphic footage jurors have seen in this trial so far, I would say.
The mob is heaving against police defending the tunnel. In this tunnel packed like sardines is AJ Fisher, FL PB and member of PB marching group on 1/6.

this is disturbing footage. Police are desperately packed in and we have two forces - theirs and the mob - pushing back against each other as someone sprays chemicals into the tunnel at police;
Nick Smith objects. Cumulative. overruled.

There's screaming and yelling, the camera footage is jostling all around and pushing until the view is outside of the tunnel.
Smith (Nordean) objects saying footage is beyond what parties litigated (admissibility) and Kenerson shakes his head. Sidebar. Husher on.

Objection is overruled. In any event, Kenerson pulls the video down now and Judge Kelly calls for the afternoon break for our intrepid court reporter.

Break over.
Jan 6 Boots on Ground chat shown. We see msgs beginning at 3:21:09 Donohoe, a leader of MOSD, talks to PBs and someone says woman shot in the capitol bldg
Locations are sent: top steps under the seats helping wounded

Donohoe: roger; we're regrouping with 2nd force

Matthew the people's chairman: local guy says fuck storming the capitol... we should've stormed mayor's office

Donohoe shares posts popping up online "breaking, security forces staging...."
conflict observer, trump orders deployment of natl guard

Tarrio posts on Parler, image of Jacob Chansley aka Q-Anon Shaman posing inside congressional chamber
New MOSD chat from 1/6 at 3:35:46, Wolkind says suck it up your country needs you to do cocaine
Johnny Blackbeard aka John Stewart: guys on ground watch ass, NatGuard on way

In same chat at 3:57 Johnny Blackbeard is telling New MOSD chat: "Its no longer about supporting Trump. he has also chosen his fucking side. now we're getting our country back. cowboy up.

In MOSD Main 2 chat on Jan 6 at 3:49 pm. a user name DickTits sends a voice note, saying he doesn't ever want to hear another back the blue chant again and moving fwd anyone who chants this at him gets smacked in the mouth
Bertino replies: NEVER

Jurors see a stream of texts in MOSD Main 2 chat were PBs excoriate police, refuse to back the blue etc

Now in photo recovered from defendant Zach Rehl's device, we see another selfie.
It's a photo from after he exited, Miller testifies, though metadata isn't listed. It's from 3:13 p.m.
Rehl is smiling, showing the "OK" hand gesture used by Proud Boys frequently

In another photo, we see Rehl with Giddings, and other PBs. And in case you needed the info:
adl.org/resources/hate…

Outside of the Capitol now and jurors see more selfies and this is one of Biggs outside the Capitol. Then in a video, there's a group shot of Tuck, Biggs, Rae, Nordean, Jackman, Nate Tuck, Eddie George and member of marching group. They are cheerfully calling out, "freedom!"

Around this time, was Tarrio aware of what was going on in the Capitol?
Miller: He was.
Now jurors see Skull and Bones chat (elders) from 1/6 around 4p.m. Same chat where Tarrio said "we did this"

As elders Skull and Bone chat scrolls, Tarrio and Angel Valentine discuss how it doesn't look like Trump is going peacefully...
Then, in S&B chat, Chris Phillips PB asks Tarrio: So what do we do now?
Tarrio responds: Do it again.

Jurors next see Parler post from 1/6 sent by Tarrio at 4:40 pm. Its a famous shot from inside the House of Reps as lawmakers are crouched hiding in the upper rafters of the chamber.
Tarrio: When people fear the govt, there's tyranny. When the govt fears the ppl, there's liberty.

Exterior security footage going up Constitution Ave is shown.
Law enforcement hauling fast toward Cap, wagons, squad cars. Walking in the street as cops pass is Nordean. He's got a POW flag draped over his shoulders.
"Like a cape," Miller says.

Accompanying Nordean in the street is Paul Rae, the woman who entered the Capitol with Joe Biggs and another woman.
The POW flag is, very, very presumably, the one taken from inside the rotunda.

There's a sidebar now.

Sidebar is over and before he ends his direct of Agent Miller, Kenerson asks her to identify what she's looking it. It's a long, long procession of law enforcement vehicles.

Nick Smith for Ethan Nordean now begins cross of Agent Miller.
He elicits: she's a case agenT along with 6 other agents, investigating this matter and she's been here from the beginning.
Smith: Along w/Agent Hanak?
Yes

Smith then elicits that Miller must provide written stmts to the defense and she testifies: DoJ asks for these long before she testified. He establishes at cross, the FBI uses a system called "the link" and its similar to Skype.

Smith asks if Miller withheld msgs about Aaron of Bloody East and whether inaccurate CHS information should be disclosed to defense and she says she did not.
Ever have access to atty client protected comms?
Miller: No I did not.
Now sidebar.

Sidebar over. Smith is working to impeach Agent Miller's credibility.
There's a spreadsheet but its not published for jury.
Smith: Are there hidden rows in this spreadsheet?
M: Not that I'm aware of.
S: You created it right?
M: I did

Smith says it appears someone has hidden rows in the spreadsheet.
Kenerson objects to publishing full gamut of spreadsheet.
There's back and forth a bit tricky to follow for me but Kenerson's objected and now there's a sidebar.

Sidebar is over.
An exhibit is pulled up. It's a spreadsheet. Very haphazardly, sections are drawn over but there's one msg from FBI Agent T. Wang to an email account belonging to Nicole Miller that Smith has highlighted from 10/21/21.

In the msg from Wang to Miller, Wang says he found an email msg between Rehl and John Moseley (once Rehl's atty).
Wang writes: "...indicates they want to go to trial"
Then he adds, "Dont freak out Jason and Luke yet"
Smith asks if Miller understands client-atty privilege

There's an objection. Then a sidebar.
And when we return, Smith begins quoting email, "i need to find other emails" and then Smith Miller if Jason is prosecutor on this case, Jason McCullough.
There's an objection. She can't answer yet and Judge Kelly calls for end of trial day

Judge Kelly says we'll return at 9 a.m. Once they leave, Smith asks if they were excused specifically because of this objection.. Kelly explains, yes if they want to make tomorrow "tolerable" arguing over this now is the preference.

Smith rattles off a bit of case law and says this evidence would indicate a possible 6th Amendment violation if govt had access to privileged atty-client info.

Kelly isn't rushing to agree with Smith; he says the govt might make a production that is beyond their obligation They may turn over a whole bunch of stuff to you, some of which is pertinent to testimony, some of which is not.

Smith: we're going to ID exact precise conversations Miller has had related to her testimony.
She's testified about Aaron of Bloody East's chats in New MOSD
Kelly: They relate to the chats, they're about the chats?
Smith: About the chats, squarely.

Smith claims Agent Miller said in email to T Wang that Aaron of Bloody East wasn't part of planning for 1/6.

Smith says govt gave them a spreadsheet of 25-26 rows and they discovered secret rows, it made 1k more rows appear and Smith says you can see Jenks stmts that Miller made not in production...
Kelly; We've been down this road....

this agent testified ....she didn't testify there was or wasn't a conspiracy. The fact that she had conversations w/another agent asking what the conspiracy is one way or another......
Smith: for us to say whether convos of facts satisfy conspiracy standard would seem...

Kelly: I would say its beyond the scope though
Smith says Jenks would permit it; Kelly isn't convinced, he thinks this is still a scope issue.
Tells Smith he is validating his decision to send jury home early.

Kelly: so you want to ask about Jenks stmts you believe you're entitled to and no matter what, if Jenks stmts weren't produced, no matter if not in scope of testimony, they must be struck?
Smith: Yes, we think scope is sep. question.

Sorry - typos - Jenks is Jencks.
law.cornell.edu/uscode/text/18…

Kelly: The natural thing to do - if you wanted the discovery, you could have easily... I'm trying to get at what you're entitled to and what you want. If you wanted the extra msgs, you could have just gone to the govt and said give them to us.

Smith replies: We discovered this extremely recently and if the person who knows about the stmt is on the stand, it seems appropriate to ask.
Kelly starts to ask Smith to tee up a motion but now Smith raises issue with impeachment questions posed for Miller

Kelly: In other words, here's a Link msg that's a subject related to subject of your testimony...
Smith: Miller could respond, 'that's not related. I don't think Aaron of Bloody east msgs are related to my testimony...'

Kelly says in that case, its not related to her testimony and this could stir up issues with bringing evidence out of scope and ringing a bell that can't be unrung

Kenerson: Even assuming that there are missing msgs, the way jencks is produced, the FBI provides material to us, we decide what is to be used, using broader definition, so its not proper to insinuate agent did something wrong.

Kenerson: We ask that we be pointed to whatever it is defense thinks they are missing and see what's there, or produce them if they want them produced or present to court ex parte and if there are no msgs, make a representation there are no msgs

The thread broke:

https://twitter.com/Brandi_Buchman/status/1633585936079503360?s=20

REPOSTING IN THREAD: Kenerson: There's been some insinuation that... Miller will answer in a certain way there'll be a motion to strike her testimony. We're saying, if they think there was material not produced, we'll go back and check and produce. In terms of production issue...

Kenerson cont.: ...no way shape or form should her testimony be struck...
We provided this back in Nov. I have no reason to doubt they only learned of this recently but.....

On 6th Amendment Issue: Kenerson says his inclination is with court's assuming some violation, what is the relevance for the jury as opposed to legal matter to argue before court.

I had to step out for a moment and here's what I missed as Smith continued to push for impeachment testimony; but ultimately, Smith is arguing FBI agent didn't provide certain stmts to prosecutors

https://twitter.com/rparloff/status/1633586494710460416?s=20

Pattis says the govt should have known or not known about the hidden columns in spreadsheet and govt is "master of its own destiny"

Pattis: They chose to put her (Miller) up. They should have known about these problems. Now they have to eat it. And we should be able to feast on that.
Pattis thinks Judge Kelly is wincing from the language.
Kelly tells Pattis no, he's smiling.
(Pattis reg. tickles Kelly)

Roger Roots for Dominic Pezzola wants no trial day tomorrow and wants Agent Miller to come in and have her sort this out with lawyers.
Sabino Jauregui for Tarrio then says he wants the judge to order prosecutors to look back at other spreadsheets for other columns and...

Judge Kelly says, this is something that would typically be worked out between parties, without his involvement initially.
Now C. Hernandez has the mic and asks court to order govt immediately to have files searched for atty-client convos and turn them over or...

Hernandez (for Rehl) says, she will move to dismiss now.
Kelly says it makes sense to retreat to our corners and figure out positions. he's not saying whether she's right or wrong.

Steven Metcalf for Pezzola says he wants to talk about 6th Amendment issue and Kelly literally says "Oh no" -- he's been trying to wrap this day for several minutes now.
FWIW, he's the only person in the room that can cut anybody off at any time.

I'm going to end it here and I'll be back tomorrow morning at 9 am ET for @emptywheel.
And before the week is up, keep an eye out for my write up there.