Proud Boys on Trial for Sedition

Capitol on January six. Prosecutors say the Proud Boys were part of every critical breach on the day of the attack, from knocking down the First Street barricades to smashing a window with a stolen police shield letting the rioters into the building. And they're giving the jury plenty of visuals of the attack, showing videos shot by documentary filmmaker Nick quest Ed, who also testified at the January six committee hearings. For anyone that really didn't think that there was extreme violence,

not day um. I filmed it, I saw it, I was subject to it. The violence was real and it was exceptionally powerful. Defense attorneys argue that the defendants are being made scapegoats and that evidence will show there was no plan by them to stop the transfer of power. Joining me as former federal prosecutor Jimmy Garula, a professor at Notre Dame Law School. Jimmy tell us about the Proud Boys. Who are they. The Proud Boys were formed in two thousand and sixteen by Vice Media co founder

Gavin McGinnis, who's a Canadian. The group is described as the far right neo fascist group that engages in political violence. While the actual membership number of members of the group is unknown, it's believed to be in the thousands, and the group has as many as forty four active chapters across the country, and it has a history of engaging

in political violence. The first a prominent appearance of the Proad Boys on the national stage was the summer of two thousand and seventeen during the Unite the Right rally in Charlotte's, Virginia. One of the organizers of the event was a member of the Proud Boys. And then in June two thousand eighteen, the Proad Boys attended the Freedom Encourage rally in Portland, Oregon, where they engaged in violent clashes with members of the Black Lives Matter group and protesters.

And then, of course, they were involved in the January six attack on the U S Capitol Building. The attorney for Enrique Tario said, they're basically a drinking club. The Proud Boys aren't a sexist, racist, homophobic organization. Well, I think there's at least two countries that would beg to differ, and one of those is Canada and the other is in New Zealand, and the governments of both of those countries have designated the Proud Boys as the terrorist organization,

and that designation carries substantial financial and economic consequences. And the police can see the property of the Proud Boys you know in their country, and banks can see their assets, and they can be denied entry into the country. And then additionally, the Southern Poverty Law Center has designated them as a hate group, so they have a reputation well beyond simply being a good old, you know, boys club.

What's the prosecution's theory of the case. There are a number of charges that have been brought in the in the formal indictment against these five members of the Proud Boys, but the most important, the most significant, is the seditious

conspiracy charge and that carries a twenty year sentence. And the government's theory is that the members of the Proud Boys engage in a conspiracy to prevent the execution of any law of the United States, specifically being the certification of the electoral College votes that Congress was undertaking on January six prior to the attack on the U. S. Capitol. What does the prosecution have to prove there A couple

of points. You know. One, it's been estimated that as many as one members of the Proud Boys were in Washington, d C. On January six and participated either in planning, directing, or executing the attack on the U. S. Capitol. So it's the agreement. You know, it's the planning. It's a conspiracy. And you know, the conspiracy charge does not require that each member of the conspiracy himself participated in acts of violence. It's enough if a member of the conspiracy, any member

of the conspiracy, participated in acts of violence. Again, all the members of conspiracy agreed and they agreed to delay to prevent the counting of the electoral votes, and they did that with the use of force or violence. And so again, any member of the conspiracy could have participated in the assault on the Capitol using force. But it's not necessary that every member of the conspiracy participated. You know,

by using force in the attack on the capitol. I think it's probably worth highlighting that, you know, one of the defendants is Dominic Pozzola, and we've seen literally, you know, multiple pictures of him using the stolen police right shield and using it to break a window into the capitol and apparently that was the first entry points where the rioters and entered into the capitol building following Pazzola's lead. Does it make any difference that Tario wasn't even in

d C on January six? He'd been arrested two days earlier for burning a Black Lives Matter flag and so he was not in d C. No, it really doesn't matter, because again, this is a conspiracy charge, and what's critical here. The critical element of conspiracy is the agreement. So the it's agreement between two or more individuals, you know, to violate US law and in this case, you know, the uh, the insurrection, and so he doesn't have to be present,

he doesn't have to be there. He doesn't actually himself have to be participating in the riot or in the attack on the U S Capitol. It's enough that he agreed to participate in the planning, the directing, the organizing of the attack. Federal prosecutors just want a conviction of four of the oath Keepers on seditious conspiracy charges on Monday.

Is the prosecution's plan here sort of similar? It seems to me that the prosecution is following the same kind of blueprint of prosecution that they followed in the Oath

Keeper's trial. And so what we're going to see in terms of evidence being presented to the jury is going to be statements made by the various, you know, five members of the Proud Boys that are being prosecuted, Statements that they made in text messages and other social media messages that demonstrated their intent to attack the Capitol Building to prevent the peaceful transfer of power. So they're going to be prosecuted based on their own words, and that

was the case with the Oath Keepers. And then there's also some members of the Proud Boys previously convicted. They've endered a guilty plea, they've agreed to cooperate with the government, and they're going to testify at trial against the members of the Proud Boys. And we also saw that in the Oath Keepers prosecution. So that's going to be the critical evidence. It's going to be their own words used

against them. It's going to be members of the Proud Boys that were on the inside that are going to testify as to what these five defendants intended and what they did with respect to the seditious conspiracy. And then lastly, it's going to be you know, photos of them at the scene, breaking into the building, knocking down you know, police barriers, perhaps even assaulting police officers. So I think that's going to be the crux of the prosecution's case.

The prosecution also has text messages from an encrypted channel which they set up I think Terrio set up called Ministry of Self Defense. Yeah, that's interesting, Yeah, it's interesting. Right. So then the question is, well, why was it necessary to set up this encrypted messaging in a system of communication, and so obviously they did not want the FBI and law enforcement officers to be able to capture these messages

to then be able to use them against them. And why, I mean, I think it demonstrates consciousness of guilt that they were engaged in the wrongdoing. They knew that what they were doing, what was was criminal and prosecutable, and therefore they sought to conceal it from federal law enforcement officers. Why do you think the judge allowed the prosecution to play that clip of former President Trump saying, Proud Boys

stand back and stand by. Well, it goes to the intent, you know, what was the intent and the purpose of the conspiracy. And one could argue that this statement and this apparent relationship or connection between former President Trump and the Proud Boys demonstrates that the Proud Boys were acting on behalf of the President Trump and that they were again seeking to keep him in power and seeking to prevent the peaceful transfer of power of the president like Biden.

And again that goes to the heart and the purpose and the intent of the conspiracy. So I think this is evidence of that intent and that relationship between former President Trump and the Proud Boys. Some of the defense attorneys, including the attorney for Tario, are trying to blame Trump, saying Trump unleashed the mob that breached the capital. You know, I don't know that it's much of a defense, and I don't think that the defense statements are inconsistent with

the execution's theory. So it could very well be the former president Trump unleashed this violent mob to attack the capital, but it could equally be the case that in doing so, the members of the Proud Boys participated in that assault and helped organize and plan that assault, which is the

basis of the seditious conspiracy charge. Before the riot, the FBI had placed informants in the Proud Boys, and now some of those informants are being called as witnesses by the defense who say they were privy to the Proud Boy chats and even marched alongside them. Is that a great help to the defense, Well, it'll be interesting to

see how that testimony plays out. And so apparently the defense lawyers believe that these particular informants have evidence that's going to contradict the government's theory that they're involved in this planning to attack the US capital. And it'll be interesting to see once those informants or on the witness stand exactly what evidence that they possess and whether it's truly exculpatory or maybe there's some aspects of their of

their testimony to exculpatory. But then other aspects that are incriminating with the statements about Trump and with the informants. Are some of the defense attorneys pointing in different directions, you know, sort of don't look here, look there. Yeah, well, that's a common strategy by defense lawyers. They want to

distract the jury's attention. They want to deflect and draw attention away from their clients to other individuals or to other participants or two other persons that may have been involved or have a motive to be involved in the criminal activity. And in my experience as a prosecutor for nine years, that tactic, that strategy is is rarely effective and rarely successful. So hopefully for their clients they have something more, something beyond that as a strategy to defend

their clients. I found this really interesting. This is according to the Wall Street Journal, that some of the defendants offered to plead guilty to the obstruction count, which carries a twenty year max sentence, but prosecutors insisted that they plead guilty to seditious conspiracy. Yeah. Yeah, so that's interesting too, I mean, but at the same time, prosecutors typically require

I mean, especially if they have a strong case. The prosecutors feel that they have a very strong case, they're not going to accept anything less than a guilty plead to the most serious charge. And the fact that some other accounts in the indictment carry the same maximum sense, doesn't mean that those are the most serious charges. Here, clearly the seditious conspiracy charges the most serious charge, and the prosecutors are holding out for a plea guilty plate

of that charge. Now, if the prosecutors thought that there were some weaknesses, maybe there's some question about the credibility of some of their witnesses, Yeah, then they might have some motive and interest in uh in agreeing to have the defendants flee to the to a lesser charge. But I think this demonstrates again the prosecutor's confidence in the in the government's case. Are the Proud Boys considered more threatening than the oath Keepers or more dangerous? I think

a couple of things. One. I think that their their membership is larger. As I stated, they believed to have members total numbers in the thousands. We don't know exactly how many, but in the thousands have at least forty plus over forty different chapters. So they appear to be more organized. They appear to be a larger in number,

they appear to be again a nationwide organization. And I think all of the those factors could suggest again that they pose a greater threat to national security than perhaps the oathkeepers. Thanks Jimmy. That's Jimmy Grule, a professor at Notre Dame Law School. The Supreme Court is going to revisit a decades old precedent that sets the standard for

businesses to deny workers religious accommodation requests. The Justices have agreed to reevaluate that legal test in a case involving a Christian letter carriers religious objection to delivering packages for

Amazon on Sundays. A divided Third Circuit affirmed a lower court ruling in favor of the U S Postal Service, but the Court's conservative super majority has resulted in a greater tendency to credit allegations of religious liberty violations, suggesting that a more employee friendly interpretation of religious accommodation requirements is on the way. Joining me is Harold Krent, a professor at the Chicago Kent College of Law. We'll tell us what the standard is now for businesses denying workers

religious accommodation requests. Title seven protects against the discrimination on the basis of religion, just as it protects against discrimination on the basis of gender and race, but differently with

respect to religion. Title seven also requires employers to make a reasonable accommodation to all religious practice of its employees, unless in so doing the employer would face an undue burden, And this particular case questions the precedent of t w A versus Hardison, where the Court held that in order to assess what an undue burden is, the question is whether the employer faces more than a diminimous amount of costs and trying to accommodate the request, such as not

having to work on Sunday as in this case, or not having to wear a particular guard in the office, not wearing a yamaka, or not wearing a headscarf, something along these lines. So what that means would be that if a court is satisfied that the employer have to pay over time, higher additional personnel or inconvenience other employees, that that would constitute more than a dominimous burden and

therefore the accommodation need not be made. So the case before the Supreme Court now will determine whether it is twenty five year old President tw A versus Hardison articulated the standard too leniently and the fact there needs to be a heavier burden placed upon employers to go out of their way and try to arrange for an accommodation so that their employees can maintain their religious practices whatever

they are. So that's the first part of the case, but the second part is perhaps even more troubling because what the court is signaled that it wants to consider whether the impact on them other employees can give rise to a undue burden because again in the case, as in the Graph case which is before the court, when a employee says I can't work on Sunday, well, somebody has to work on Sunday, And does that mean that an employer can take into account that their seniority rights

of other employees and they want to be home on Sunday, or if they make everybody else works Sundays and they'll have less time with their family and the religious employee enjoys more time with family than the rest of employees. Are these considerations that come within the contemplation of what

an undue burden is. So it has a very important sort of overtones for the employer employee relationship and whether the employer can take into accounts seniority rules can take into account the fact that another employee has sick kids at home, and so forth and so on. Until now, the Supreme Court has been reluctant to review the hardest

in standard, hasn't it. There have been challenges under Title seven, but this tw A versus Hardsman standard has been around for over thirty years, and individual justices such as Gorsuch, Thomas and Alito in the past have called for re examining the Hardison president and so it's no surprise that they took this case. But the real issue I don't think is whether they keep Hartisan because I think that the standard should be adjusted. But how far will the

court go? And if the Court says an employer can't pay attention to the impact on his other employees, that's going to put employers in a real bind. Well, the Court is obviously taking the case to change the standard right and with this court most likely to broaden it in favor of religious liberty. Unquestionably, the Court is looking to broaden the individual religious right at stake here, and the question is to what extent will put the burden

on the employer to make that accommodations. Now, according the prior cases, particularly courts of appeals have been clear that the employer doesn't have to accept the accommodation offered by the plaintiffs, that as long as the employer finds a reasonable accommodation, the employer can pick and choose amongst those that satisfy that threshold. I don't think the court is going to re examine that president, which I think is important.

But I do think that the key here is if the court would come out and say, you know, we don't care about seniority rights, even if it's in the collective bargaining agreement, you have to accommodate this person's interest. It does elevate the interests of religious ability beyond collective bargaining, beyond seniority, beyond having the kids at home, and that just would suggest that sort of a really distorted view I think of what Congress had in mind when it

created Title seven. So this case involved a Christian letter carrier who objected to delivering packages for Amazon on Sunday. But in the case, the postal service showed that it offered instead to let him swap Sunday shifts with others and helped to find someone for him to do that with. Would you consider that a reasonable accommodation. The court is suggesting that it's unlikely to find that that's a reasonable accommodation.

That in that case, it was a rural post office, there was only sometimes for employees there, and it's very difficult to allow someone to get a Sunday off when you're in that kind of atmosphere. And the employer tried to help people swap ships. The supervisor himself did some Sunday deliveries to alleviate the burden on this employee, but in that kind of environment simply couldn't without hiring a

new person, completely accommodate the interests of the employee. So that's the context of the case that's before the court on this term, and most commentators think the court is going to find that that either is simply and reasonable accommodation, that the employer would have had to mandate that another employee take over the Sunday duties or hire a part time employee in order to ensure to accommodate the religious interests of this one employee. So is the court likely

to raise the standard the burden on the employer. Yeah, I think the court is for sure going to say that in order to satisfy Title seven, the employer must make at least substantial efforts to accommodate the interests of the employee, and that an undue burden arises only if there is a significant impact upon the employer was viewed in terms of financial or organizational or other kinds of

employment costs. But the second question which is inbedded in that is whether in thinking about those costs can employer take into account seniority? Can the employer take into account

fairness to the other employees. And that's a tricky question, and the court may create more divisive workplaces, which is something we don't need them right now, by saying that we're going to elevate one person's religious interests over somebody else's family interests, somebody else's interest in taking care of

sick kids, somebody else's different religious interests, etcetera, etcetera. So it becomes a real sort of potential powder keg at the office if an employer has to go to great length to accommodate only religious interests as opposed to those of family and so forth. So the plaintiff is advocating a standard more like that. In the American with Disabilities Act. What standard is that? What standard is that you have to make reasonable efforts to accommodate any kind of disciploying

the workplace in order to be inclusive. Um. And that's the standard that's been followed for a while. And I think that the idea of taking reasonab efforts to accommodate is really what the test is all about. I think the hires in court just articulated it, perhaps uh poorly uh. And I think that if it's just a reasonable commodation,

that's fine. The question is what is a reasonable combination and do you have to in the questions of Americans with Disability Act, do you have to make the new kind of duties alter duties gifted by technology to what extent you have to buy new technology to help somebody adapt? And so in the religion case, the question again will be similar, will be what is a reasonab accommodation changing shifts, maybe hiring part time personnel, Maybe do you have to

ignore collective bartain agreements on seniority. So those are some unanswered questions that the court probably will give us guidance on in deciding this upcoming case. And employers need that guidance. The plantiffs being represented by a religious public interest group First Liberty Institute, and it's also taken on similar federal cases. One involves a suit filed against cv S on behalf of a Christian nurse who allegedly refused to prescribe contraceptive

or abortifacient drugs because of her faith. That seems to go much further than this case involving the letter carrier, because anytime a woman comes in requesting contraceptive advice, etcetera, you have to have a totally different nurse helping her, right And so in that case, the question is, you

know what the personnel situation in the office. Are there many people so it's not too difficult to have somebody say, well, you know, you have to go to counter three to ask this, or they say just a minute, I'll go get somebody to help you. If that's the answer, then the accommodation would be reasonable. But if it goes to the question of having to hire somebody else, um, if it goes to the issue of making somebody have a different job entirely just so this person's religious views can

be accommodated, it's a question. I mean think about out whether a police officer can say, you know, I can't protect the abortion clinic because it's just against my religion. You have to find somebody else to go there, or somebody who's a firefighter at the same thing. Or think about even worse today, a teacher says, what's against my religion to teach anybody who's gay, you'll have to switch

make them switch classes. Right, I mean, this kind of religious objection can be articulated in so many diverse ways. We haven't even contemplated that. You have to draw up pretty clear lines about how many steps going backwards can an employer take, can undermine educational values, can undermine the safety of the citizens, or do you just is it just a huge economic burden or does it make a workforce become unruly because of such divisiveness. So that's why

this could be a powder take of the case. Well, this is the court that said it was a high school football coaches constitutional right to pray at the fifty yard line right after games, despite other accommodations that were offered to him. And it's it's hard to understand how the court could have decided the Bremerton case with those facts and I think that the courts sort of change the facts a little bit just to make their um their claim a little bit more palatable. But it's clear

that this court cares a lot about religious liberty. Some people think they only care about Christian religious liberty. But even if they are much more open than that, the question still is, how do you accommodate the religious views of the few to the demands of employment, whether it be the nurse, the firefighter, or the postal carrier. Do you have a suggestion for what kind of tests the court could use here that wouldn't interfere so much in

employer employee relations. So if the court decides to discard the Harderson tests, but nonetheless to maintain the duty on the employer to make a reasonable accommodation, and then just articulates four or five factors so that lower courts can determine what is a reasonable accommodation, I think that would be consistent with the spirit of Title seven. UM. Some of those factors would be um cost. Another factor would be impact on other legitimate interests of employees, such as

seniority rights. And then at the court articulate a couple more these factors than I think would give guidance to the lower courts to sort through these cases and without having too much of a delatary's impact on the workplace. Thanks so much for your insights, how that Professor Harold Crent of the Chicago Kent College of Law. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news by listening

to our Bloomberg Law podcast. You can find them on Apple Podcasts, Spotify, and at www dot bloomberg dot com Flash podcast Flash Law. I'm June Brawlso when you're listening to Blue Star