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Joseph A. Hayden, Jr. Authors Article in InsiderNJ, “The Conviction of the Proud Boys Leadership is the Canary in the Coal Mine for Trump”


Joseph A. Hayden, Jr., chair of the Criminal Defense and Investigations practices at Pashman Stein Walder Hayden P.C., has authored an article in InsiderNJ titled “The Conviction of the Proud Boys Leadership is the Canary in the Coal Mine for Trump.”  The article discusses the possible implications on the case against Trump and his cohorts based on the convictions of the Proud Boys, Oath Keepers and other militia groups.

The convictions of the leaders of the Proud Boys, the right-wing militia group, for sedition and related criminal offenses arising out of the events of January 6th, is a big deal with potentially dire consequences for Donald Trump.

The convictions occurred after an almost four-month trial, with jury deliberations over a five-day period.  Although one new member of the Proud Boys was acquitted of seditious conspiracy, all five defendants were convicted of serious charges. The former leader of the Proud Boys, Enrique Tarrio, was convicted, even though he was not even present in Washington, DC on January 6th.

The success rate of the Department of Justice in these investigations is impressive.  They have also achieved convictions by a jury against the Oath Keepers, another right-wing militia group, involved in the storming of the capital on January 6th, in two separate trials in 2022.  All told, 14 defendants have either pled guilty or have been convicted of seditious conspiracy.  Approximately 1,000 people have been charged arising out of the attacks on the Capitol.  On a daily basis, the news reports about heavy sentences for the wrong-doers who engaged in violence.  These convictions (without any meaningful acquittals) create the overwhelming likelihood that Jack Smith and Merrick Garland will bring a prosecution against Trump and his inner circle for sedition.

How can the Department of Justice prosecute the foot soldiers (the rioters), and the field officers (Proud Boys and Oath Keepers) for the insurrection and not prosecute the Trump and his inner circle (Meadows, Giuliani and Eastman)?  Ultimately, Smith and Garland will be judged by history to be timid and ineffective if they fail to indict the instigator of the January 6th insurrection – where people ultimately died from their physical and psychiatric injuries.

Moreover, the theory of prosecution against Trump and his cohorts is far stronger than against the Oath Keepers or Proud Boys. The cases previously tried merely involve conduct on January 6th, and communications a short time before or after.  With respect to Trump and company, a case can be made that the conspiracy began on election night, involved a failed attempt in all five swing states to obstruct certification of the election, included an attempt to influence the Attorney General to start a baseless fraud investigation, continued with an attempt to pressure Mike Pence into illegally refusing to accept the electoral votes and culminated with an attempt to obstruct the certification process by brute force from a crowd Trump incited.  Trump’s legal problems in defending the case are compounded by legal rulings the Government has obtained piercing the attorney client and executive privilege, which will permit witnesses to testify about potentially incriminating conversations with Trump which have not been divulged until now because of a claim of privilege.

There’s another wild card, which could have catastrophic consequences for Trump.  None of the defendants convicted of seditious conspiracy have been sentenced and, even with a clean record, each is facing “hard time” in a federal institution because of the violent nature of the charges.  Although certain media accounts report that the defendants are each facing 50-year sentences, it is more likely the sentences would be in the 20-year range under the sentencing guidelines, unless a sentencing judge decides to make an upward departure because of the abhorrent criminal nature of the conduct.  Given the offense conduct of the convicted defendants, each will undoubtedly start out serving their sentence in a high-security facility – not a soft camp.

These defendants facing such severe sentences essentially have three options:  appeal and hope their convictions are reversed – possible but unlikely; hope that Trump is elected president in 2024 and he will make good on his vague suggestions that he will pardon the January 6th “patriots” – but the smart defendants will remember that Donald Trump is the master of the “bait and switch”; or enter door number 3 and cooperate against Trump and his co-conspirators which will provide them with “legal triage,” a substantially reduced sentence.  It’s a pretty good bet that some defendants convicted of sedition will choose to enter door number 3.

The bottom line is that the Department of Justice has obtained convictions for sedition in all three cases where it has brought those charges.  The potential case against Donald Trump is more wide-ranging with stronger evidence available to the prosecution.  After the Proud Boys verdict, it is almost inevitable that a sedition prosecution will be brought against Trump and his cohorts after DOJ’s exhaustive investigation is concluded.  The canary in the coal mine is no longer singing.

You can view the full article on InsiderNJ.

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