Breaking News
More () »

Prosecutors may use Trump's 'stand back and stand by' comment in Proud Boys trial, judge rules

An attorney for Seattle Proud Boy Ethan Nordean argued the government failed to notify the defense in time that prosecutors planned to use the video.

WASHINGTON — A federal judge ruled Wednesday that prosecutors may use a video of former President Donald Trump telling Proud Boys to "stand back and stand by" in the trial of five members of the group accused of planning to attack the U.S. Capitol Building on Jan. 6, 2021.

In a motion last week, attorney Nick Smith, who represents Proud Boys organizer Ethan Nordean, asked U.S. District Judge Timothy Kelly to exclude approximately 30 exhibits from trial that were included in a list submitted by the government the day earlier. Smith argued the government had failed to notify the defense about the exhibits in time for them to incorporate them into their trial preparation. Jury selection began Dec. 19 and concluded Tuesday for Nordean and four co-defendants. All five are accused of seditious conspiracy and multiple other charges.

The exhibits in question included a number of video clips showing events at the Capitol and damage to the building, as well as a stay-away order issued by a D.C. Superior Court judge for former Proud Boys national chairman Enrique Tarrio and two podcasts featuring North Carolina Proud Boy Jeremy Bertino, who is expected to be a key witness for the government during trial.

Notably, the list also included two now well-known statements from the former president. One is a 53-second clip from a September 2020 debate between Trump and President Joe Biden in which the former president told Proud Boys to “stand back and stand by.”

“But I’ll tell you what,” Trump continued, “Somebody’s got to do something about antifa and the left because this is not a right-wing problem.”

In testimony before the January 6th Committee, Bertino, who had been part of the Proud Boys’ leadership, said the group saw Trump’s comment as a “call to arms” and that its ranks swelled “exponentially” afterward.

Smith also sought to exclude Trump’s early morning Dec. 19, 2020, tweet exhorting his followers to come to D.C. on Jan. 6 and promising it “will be wild.” During public hearings, the January 6th Committee repeatedly showed evidence of how that particular tweet caused organizers to reschedule events to Jan. 6 and motivated followers to begin planning travel to D.C.

Although neither statement reflects directly on any alleged actions by the five defendants in the case, paired with Bertino’s expected testimony they could help prosecutors in their efforts to link the Proud Boys and the effort to keep Trump in power. Showing each defendant planned to oppose the transfer of power specifically or the authority of the government generally is a necessary element for prosecutors to prove the seditious conspiracy charge. All five defendants have denied participating in any conspiracy or plan connected to Jan. 6.

In their response filing last week, prosecutors said the updated exhibit list came in response to decisions by the judge in mid-December about what evidence would be admissible during trial and that none of the additions represented any serious prejudice to the defense’s case. 

On Wednesday, Judge Kelly ruled Trump's statement during the presidential debate would be admissible at trial. He reserved ruling on the admissibility of the remaining exhibits. Opening arguments were expected to begin Thursday morning.

We're tracking all of the arrests, charges and investigations into the January 6 assault on the Capitol. Sign up for our Capitol Breach Newsletter here so that you never miss an update.

Before You Leave, Check This Out