“There is no claim that the defendant caused harm to anyone. … He never personally caused damage to any particular property, ”said the judge. “He was the leader of a march to the Capitol. Once they got there, it is unclear what leadership role this defendant took for the people inside the Capitol. … The scarcity of evidence about its direction is significant here. “
Howell called the issue of Nordean being detained a “closed case”, and she said she was disturbed by his rhetoric, especially his lack of remorse after the January 6 violence.
“These are sinister statements,” said the judge. “He arguably participated in this attack on the Capitol in which some people lost their lives, including a policeman.”
Howell ordered Nordean to be released for home detention with GPS monitoring in the Seattle area, where he lives. He will be allowed to return to Washington, DC, only for court hearings and, with permission, to meet with his lawyers.
Howell said there was no doubt, based on videos, that Nordean met with other members of the Proud Boys outside the Capitol, applauded them with a megaphone as they marched, and that he entered the Capitol illegally. “He was not just caught in a crowd. He pre-planned, ”she said.
However, prosecutors argued that Nordean’s actions, such as talking to another Proud Boy shortly before breaking a Capitol window, demonstrated that he was directing members of the group to commit crimes.
“This was an intentional act,” said Assistant Attorney Jason McCullough, adding that Nordean’s repeated invocation of rhetoric about “1776” was not just chatter.
“This was not just an affection for three-pointed hats and salt water caramel. It was an interest in provoking a violent action ”, declared the prosecutor.
However, Howell again questioned the strength of the government’s case. “The evidence that the defendant directed people to break the windows to enter the Capitol is weak, to say the least,” she said.
The judge said the government may eventually be able to prove the violence ordered by Nordean, perhaps with the testimony of others accused in the riot who chose to cooperate, but at the time the government had little more than theory and its history of fiery conversations. and posts on social networks. , which she called “extreme offensive”.
The decision was a blow to prosecutors in one of the most visible cases that emerged after the January 6 uprising. Nordean, according to the government, was a senior member of the Proud Boys hierarchy – a member of their “council of elders”, according to McCullough – and someone that prosecutors said was a significant driver of the events that led to the violent capitol outlet.
“Ethan Nordean would, with his presence on January 6, command a certain degree of authority,” said McCullough.
The prosecutor repeatedly pointed out Nordean’s associations with other prisoners during the riot, such as Dominic Pezzola – one of the first to break into the building by breaking a window with a police riot shield – and William Chrestman, who is accused of threatening to assault police officers.
But when pressured by Howell, prosecutors did not provide evidence that Nordean specifically directed these violent actions. They also refused to refute Nordean’s claim that his cell phone was dead for much of January 6 and downplayed the claim that Nordean saw his role as Proud Boys elevated after the arrest of the group’s leader, Enrique. Tarrio.
Nordean, emphasized McCullough, was “appointed” to receive “powers of war” in the absence of Tarrio, but was not necessarily granted to them.
Nordean’s defense also contested a series of factual allegations in the government’s request for release, including suggestions that he was preparing to flee and that he used sophisticated radio equipment to communicate with other Proud Boys during the attack.
The prosecution suggested that during the riot Nordean used a radio he bought from Amazon, but the defense produced records showing that the radio was not delivered to him until the day after the attack on the Capitol.
Prosecutors also found it difficult to prove that Nordean was at risk of flight based on the discovery of a passport belonging to his wife’s ex-boyfriend. Although the government says the passport was discovered on the bedroom dresser, Nordean’s lawyer refuted the claim, noting that his wife regularly kept it in a jewelry box on the couple’s nightstand and that the two men did not look like each other. nothing.
“The government made repeated factual statements about Ethan’s actions and then walked away from them without any support,” said Nordean’s lawyer, Nicholas Smith. “It just isn’t there.”
Smith said it was worrying that the government was seeking criminal charges based largely on Nordean’s role in leading a march and suggested that the approach was tantamount to guilt by association.
“I challenge the government to set a single precedent with such a comprehensive theory of aid and complicity of responsibility,” said the defense lawyer. “Tagging with a group of people would implicate every person in the crowd for a felony, but the government is not charging everyone in the crowd. … vague claims about taking back the government and that sort of thing is not an offense of help and complicity. “
McCullough revealed at the start of Wednesday’s hearing that a grand jury indicted Nordean earlier in the day on charges similar to those of a criminal complaint used to arrest him last month. They include obstructing a Congressional process, assisting and encouraging the depredation of government property and minor charges.
Now that Nordean has been indicted, his case will be assigned to a judge at random for later proceedings. Howell said the government is free to present to the judge that Nordean is so dangerous that he should be kept in prison pending trial.
“My word may not be the last word on this,” she said.