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First Amendment can’t protect Philly Proud Boys head Zach Rehl from trial on Capitol riot charges, a judge rules

A federal judge cleared the way for conspiracy charges against Rehl and other Proud Boys leaders to proceed to trial in one of the Justice Department's most high-profile Jan. 6 prosecutions.

Zach Rehl (front) snaps a selfie with other members of the Philadelphia Proud Boys chapter outside the U.S. Capitol during the Jan. 6, 2020 insurrection.
Zach Rehl (front) snaps a selfie with other members of the Philadelphia Proud Boys chapter outside the U.S. Capitol during the Jan. 6, 2020 insurrection.Read moreU.S. District Court Filings

The First Amendment does not protect the leader of the Philadelphia Proud Boys from criminal prosecution for his alleged role in organizing and participating in the Jan. 6 Capitol riot, a federal judge in Washington ruled Tuesday.

The decision by U.S. District Judge Timothy Kelly, which comes nearly a year after the attack that delayed the certification of President Joe Biden’s electoral victory, cleared the way for prosecutors to proceed in their conspiracy case against Zach Rehl, 36, and three other leaders of the far-right organization.

In doing so, the judge rejected arguments from Rehl and his codefendants — Ethan Nordean, Joseph Biggs, and Charles Donohue, the leaders of Proud Boys chapters in Washington, Florida, and North Carolina — that they were being selectively targeted for prosecution because of their political beliefs.

Kelly determined that all four men had been properly charged with conspiring to obstruct Congress, trespassing, and destruction of property — conduct that he ruled is not protected by the Constitution.

“Quite obviously, there were many avenues for defendants to express their opinions about the 2020 presidential election, or their views about how Congress should perform its constitutional duties on January 6 without resorting to the conduct with which they have been charged,” the judge wrote in his 43-page opinion.

» READ MORE: Philly Proud Boys president Zach Rehl said he was ‘proud’ of group’s role in Capitol riot, feds say

The ruling by Kelly — an appointee of President Donald Trump — is the latest in a string of similar decisions from Washington judges handling the cases of more than 700 accused Capitol rioters, 66 of whom hail from Pennsylvania. It handed the Justice Department a significant victory in one of its most prominent prosecutions against leaders of militant far-right organizations accused of playing an organizational role in the attack.

In particular, the judge’s decision to let stand the felony obstruction of Congress charges — which carry a 20-year maximum prison sentence — is significant because that statute has served as the cornerstone of the most serious cases against alleged organizers. Nearly every defendant facing that charge has challenged its legality in court.

So far, Kelly is the fourth judge to side with the Justice Department’s interpretation of the law. Another judge rejected similar arguments to toss charges in a conspiracy and obstruction case against leaders of another such group, the Oath Keepers, last week.

In his opinion in the Proud Boys case Tuesday, Kelly distinguished the alleged actions of Rehl and his fellow Proud Boys leaders from other forms of constitutionally protected, if controversial, demonstrations.

“No matter defendants’ political motivations or any political message they wished to express, this alleged conduct is simply not protected by the First Amendment,” he wrote. “Defendants are not, as they argue, charged with anything like burning flags, wearing black armbands or participating in mere sit-ins or protests.”

Rehl, a Marine veteran and son and grandson of Philadelphia police officers, has remained incarcerated at the Federal Detention Center in Philadelphia since his arrest at his Port Richmond home in March. His attorney, Carmen D. Hernandez, did not respond to requests for comment on the ruling Tuesday.

His previous lawyer, Jonathan Alden Moseley, had argued for Rehl’s release and to have the case thrown out in a series of unorthodox filings in which he facetiously mused his client might be a witch, accused the government of seeking to extract “loyalty oaths” from Capitol riot participants, and likened Rehl to Richard Jewell, the security guard accused and later cleared of involvement in the 1996 Olympic Park bombing in Atlanta.

Moseley argued that Rehl and the other Proud Boys had no intention of inciting a riot on Jan. 6 but had gone to Washington “to make sure the defenseless Trump supporters in the gun free zone of D.C. did not get jumped and stabbed by the rioters who had run amok all during 2020 [like] ANTIFA.”

Kelly previously denied all of those motions. In his opinion Tuesday, he also rejected a claim by Rehl and his codefendants that their case should be tossed because Congress’ certification of the Electoral College vote on Jan. 6 couldn’t be considered an “official proceeding” under the law since it was merely a ceremonial function.

“The Court is not persuaded,” the judge wrote, noting that the certification vote is one of the few Congressional proceedings specifically detailed in the Constitution. “The relevant actors here — Vice President Pence and the members of Congress — were ‘directed to appear’ by both statute and the Constitution.”

Rehl has pleaded not guilty and vowed to take his case to trial, relying upon fund-raising to pay for his legal defense, including roughly $40,000 that Moseley said his client had raised as of this month on the “Christian crowdfunding” site GiveSendGo, a popular destination for right-wing causes blocked from other sites.

The lawyer also claimed in court filings that the Patriot Freedom Project — a group founded by the aunt of alleged white supremacist and fellow accused rioter Timothy Hale-Cusanelli, of Monmouth County, N.J. — had pledged to pitch in an additional $20,000. Meanwhile, Moseley said, another organization led by embattled Trump attorney Sidney Powell has offered to cover all of his legal expenses.

Rehl dumped Mosely as his attorney shortly after that filing and, with his new lawyer, must now prepare for a trial scheduled for May.

In court filings, prosecutors have put him at the center of the Proud Boys leadership and planning for Jan. 6

They have alleged Rehl, Nordean, and Biggs were the leaders of a six-man “upper-tier” leadership team handpicked by Proud Boys president Enrique Tarrio to develop an “operational plan” for the Jan. 6 insurrection.

Hoping to avoid mistakes from past rallies that had devolved into open street brawls with far-left activists, the group decided this time they would maintain a lower profile. They’d leave their traditional black-and-gold polo shirts at home, equip themselves with encrypted radios, and focus their attentions on riling up “normies” — or unaffiliated supporters of Trump whom they could hide behind.

Together, prosecutors say, Rehl, Nordean, Biggs, and Donohoe encouraged members from Proud Boys chapters across the nation to descend on Washington that day, used websites to raise money for travel and equipment, outfitted members with paramilitary gear and tactical vests, and developed plans to avoid detection.

On the day of the attack, Nordean, Biggs, and Rehl — wearing a camouflage “Make America Great Again” cap and carrying a Temple Owls backpack — led a crowd of roughly 100 Proud Boys members from the Washington Monument toward the Capitol security lines.

They threw themselves into the fray as a mob of Trump supporters attacked police and smashed their way into the building. Photos later surfaced showing Rehl inside the Capitol, smoking a cigarette amid a mob of rioters carousing in the office of Sen. Jeff Merkley (D., Ore.).

» READ MORE: Philly Proud Boys president Zach Rehl marched alongside leaders charged in Capitol riot

Three other Philadelphia Proud Boys also pictured in those photographs — Isaiah Giddings, 29, of Philadelphia; Brian Healion, 31, of Upper Darby; and Freedom Vy, 36, of Philadelphia — were charged in a separate indictment out of Washington this month.

Unlike Rehl, they are not facing the more serious conspiracy charge that now threatens to send their leader and his codefendants to prison for up to 20 years.

Read the opinion: