Prosecutors did not withhold or “suppress” Jan. 6 security footage — aired in February by Tucker Carlson — from the Proud Boys now on trial for seditious conspiracy, a federal judge ruled late Sunday.
U.S. District Court Judge Tim Kelly used his 10-page order to knock down a series of thinly premised but eye-popping allegations lodged by one of those defendants, Dominic Pezzola, in recent weeks.
In fact, Kelly wrote, Pezzola’s lawyers have had access to most of the footage since September 2021 and the rest since early 2023, far enough in advance for Pezzola to use at trial. But Kelly also noted that there’s simply no indication that any of the footage is exculpatory for Pezzola, who helped ignite the breach of the Capitol building when he smashed a Senate-wing window with a stolen police riot shield.
“Pezzola has not shown how any of this relates to an element of an offense with which he is charged — or how it relates to him at all,” Kelly wrote, adding, “Nor has the evidence been suppressed. As the Court has already explained to Pezzola, he cannot base a [suppression] claim on information he has long possessed.”
As the trial of five Proud Boys — including former national chairman Enrique Tarrio — inches toward a conclusion this week, Kelly sidelined several of the most sensational allegations that Pezzola’s attorneys had lodged. Among them: that prosecutors had destroyed evidence related to the case, that they coerced false guilty pleas from other Proud Boys and that they doctored at least one report from an informant to obscure an FBI agent’s involvement.
Kelly summed up his response to these claims in a section of his order headlined: “There Is No Evidence of Government Misconduct, Let Alone Misconduct Warranting Dismissal, a Mistrial, or Other Sanctions,”
Kelly described Pezzola’s theories as “bizarre,” based on “conjecture” and other times not based on anything at all.
“At bottom, not one of Pezzola’s contentions withstands scrutiny,” Kelly wrote. “His factual premises lack support, and his legal premises cannot be squared with case law.”
In his order, Kelly also rejected claims that prosecutors had improperly withheld key evidence in the case by claiming it was classified. The Justice Department worked frantically to reclaim 80 lines of internal FBI messages that it had inadvertently provided to the defense lawyers in the case, saying they were never meant to be turned over and were likely classified. The effort prompted defense lawyers to raise questions about whether prosecutors were seeking to seal away significant exculpatory evidence under the guise of a classification issue.
Kelly rejected this speculation in his order, contending that they had no bearing on the defense’s case at all.
“The Court has reviewed the 80 messages produced to it in camera and finds — regardless of whether they were properly classified or even properly categorized as law-enforcement sensitive — that the Government had no duty to produce them to the defendants in the first place,” he wrote.