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Amanda Marcotte

Stand back, stand by ... go to prison

In the days and hours before the jury finally brought back a verdict in the Proud Boys trial, there was a dour mood in much of the coverage. Journalists worked overtime to lower expectations that these particular insurrectionists would taste real justice for what they did on January 6. The initial word was that the jury returned a "partial verdict." The prevailing assumption was that some of the lower-ranking of the five Proud Boys on trial may be convicted of lesser crimes involving the violence of the Capitol riot, but that the jury would balk at some of the more serious charges, such as seditious conspiracy. Audiences were especially warned that Enrique Tarrio, the then-leader of the Proud Boys, might get off scot-free, as he had not been at the Capitol that day. 

Then the opposite happened.

The jury threw the book at the Proud Boy leaders, and showed a more merciful attitude towards those who were just following along.  Tarrio and his top lieutenants Joseph Biggs, Ethan Nordean, and Zachary Rehl were all found guilty of seditious conspiracy. The jury, however, acquitted Dominic Pezzola, who was a bit of a latecomer to the gang and whose defense has argued, persuasively, that he was more of a follower than a leader. 

In reaching this verdict, the jury sends a clear message: When it comes to the events of January 6, the generals bear far more responsibility than the foot soldiers.

It's a signal that special prosecutor Jack Smith, who was appointed by Attorney General Merrick Garland to investigate Donald Trump's role in the attempted coup and the Capitol riot, should pay special heed to. The common wisdom regarding January 6 has been that it's easier to convict the low-level people than those at the top of this conspiracy. But there's growing evidence that, in reality, ordinary Americans are far more interested in justice for those who spearheaded the fascist insurrection, instead of settling just for the convictions of the people who did their dirty work for them. 

"At my Senate confirmation hearing just a month after January 6th, I promised that the Justice Department would do everything in its power to hold accountable those responsible for the heinous attack that sought to disrupt a cornerstone of our democracy: The peaceful transfer of power to a newly elected government," Garland said in his press conference after the verdict.

The verdict was yet another reminder that the public believes "those accountable" include those who masterminded the insurrection, not just those who broke windows and chased members of Congress.

The verdict was yet another reminder that the public believes "those accountable" include those who masterminded the insurrection, not just those who broke windows and chased members of Congress. Thus, as long as Trump remains unindicted, Garland's promise remains unfulfilled. 

The conviction of Tarrio is especially important in this regard. Going into jury deliberations, many of the close observers of the court were bearish about his possibility of conviction. As Brandi Buchman of Empty Wheel and Roger Parloff of Lawfare explained on the Lawfare podcast last week, there was significant photo, video and witness evidence of the other four Proud Boy defendants committing viscerally affecting crimes, but Tarrio was not actually present at the riot. Granted, it was because he was barred from Washington D.C., due to being charged with other crimes stemming from street violence a couple days before the insurrection. Still, he wasn't at the riot, and so the worry was the jury would struggle to find him guilty. 

That worry thankfully did not pan out. The jury was able to absorb the various text and online messages from Tarrio that prosecutors presented, showing that Tarrio was signaling what was expected of other Proud Boys and cheering them from the sidelines.

Contrast that with the jury's continuing reluctance to go quite as hard on Pezzola, even though he's on video smashing through Capitol windows with a stolen police shield. Pezzola initially appeared to do himself little favor by taking the stand at trial, where he melted down and raved about "this corrupt trial with your fake charges" to the prosecutor. But he did manage to convince the jury he's more of a follower than a leader, leading to his acquittal. Clearly, the jury was more interested in punishing those giving the orders than being the guy taking them. 

The ordinary people who sit on juries understand the Spider-Man rule: Great power comes with great responsibility.

The great irony is that the lawyers for the Proud Boys themselves have been making that argument — by pinning the blame on Donald Trump.

During opening arguments in January, Tarrio's lawyer argued his client was a "scapegoat" and that "Trump told these people that the election was stolen." The defense team circled back around to this argument in closing, pointing out that Trump said "fight like hell," and the Proud Boys were just doing what they were told. There were even efforts to bring Trump to the stand

Obviously, the jury didn't totally buy that line of argument, because all five defendants are grown men who could have simply rejected Trump's call to arms. That Trump is guilty doesn't make the Proud Boys innocent, after all. But the larger principle, that the commanders deserve more blame than those who follow orders, is reflected in this verdict. We saw the same thing with the Oath Keepers trial last year. The group's founder, Stewart Rhodes, and his right-hand man, Kelly Meggs, were convicted of seditious conspiracy. Two other defendants, who were acting on orders from their leaders, evaded the most serious charges, even as they were convicted of lesser ones. 

Clearly, the ordinary people who sit on juries understand the Spider-Man rule: Great power comes with great responsibility. Everyone who engaged in January 6 is guilty on some level, but the higher up the chain you go, the guiltier you are. Taken to its logical conclusion, one can guess that a fair-minded jury would only be too glad to convict Trump. There's an argument that January 6 would have still happened without the Proud Boys or the Oath Keepers. But without Trump's incitement, the insurrection would have never happened. He bears the ultimate responsibility, and it's a travesty that he's still evading accountability. 

The good news is that Smith, who has a long history of putting away powerful monsters, is throwing up signals that he is serious about dealing with Trump. Last week, former vice president Mike Pence was made to testify before a grand jury on January 6. Pence put up a legal fight to avoid testifying, but Smith was not easily intimidated. He was even reportedly there in person during Pence's testimony. If there is any lingering reluctance to go forward with charges, then this Proud Boys verdict should ease it.

Juries are not just capable of understanding that leaders deserve more blame than followers. They appear eager to make the people who led the insurrection pay the highest penalty for the events of that day. 

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