‘This Is a Secret’ – The New York Times
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February 17, 2023In a long-shot move, lawyers for five members of the Proud Boys facing sedition charges in connection with the Jan. 6, 2021, attack on the Capitol are seeking to issue a subpoena demanding that former President Donald J. Trump appear as a witness at their trial.
The lawyers are hoping to elicit testimony from Mr. Trump that could persuade the jury that he, rather than their clients, instigated the crowd that stormed the Capitol on Jan. 6. Prosecutors have built their case against the five Proud Boys by arguing that they induced dozens of members of the far-right group and others in the mob that day into taking action against a joint session of Congress where lawmakers were certifying the results of the 2020 election.
It remains unclear whether Judge Timothy J. Kelly, who is overseeing the case, will allow the subpoena, which was drafted over the weekend by the defense lawyers for the judge’s approval. If the subpoena is permitted, Mr. Trump is almost certain to try to quash it and avoid being placed under oath on the witness stand and questioned about his role on Jan. 6. His spokesman did not immediately respond to a request seeking comment.
Other Jan. 6 defendants have considered issuing trial subpoenas for Mr. Trump’s testimony, but none have actually gone forward with the plan. Last year, Dustin Thompson, an exterminator from Ohio, sought permission from the judge in his case to subpoena the former president and several of his allies to testify as witnesses at his trial.
“It is anticipated that, when called as a witness, Donald J. Trump will testify that he and others orchestrated a carefully crafted plot to call into question the integrity of the 2020 presidential election and the validity of President Biden’s victory,” Mr. Thompson’s lawyer, Samuel H. Shamansky, said in court papers filed at the time.
That effort, however, was cut short by the judge in Mr. Thompson’s case before a subpoena was sent out. After testifying in his own defense that he was merely following Mr. Trump’s orders while storming the Capitol, Mr. Thompson was convicted of all six charges he faced and sentenced to three years in prison.
The five Proud Boys defendants — Enrique Tarrio, Ethan Nordean, Zachary Rehl, Dominic Pezzola and Joseph Biggs — may have a better legal argument than Mr. Thompson to seek Mr. Trump’s testimony. Their lawyers contend that because the government has accused the defendants of inciting others to join them in attacking the Capitol as “tools of the conspiracy,” they have a right to rebut the claim by presenting the jury with an alternate theory.
The defense is not expecting to begin its presentation to the jury for at least two weeks, leaving ample time for Mr. Trump to contest the subpoena if it is issued. It is uncertain how long Judge Kelly might allow litigation about the subpoena to drag on.
The trial has already been bogged down several times in arcane disputes between the defense and the prosecution over the sorts of evidence that can be shown to the jury — including hundreds of thousands of encrypted group chats the Proud Boys exchanged on the messaging app Telegram on Jan. 6 and the months leading up to it.
Next week, prosecutors expect to call one of their star witnesses, Jeremy Bertino, a Proud Boys leader from North Carolina, who pleaded guilty to seditious conspiracy and is cooperating with the government.
