The decision is the latest highlighting how judges around the country have had widely different reactions to the charges against Capitol rioters, and how challenging it can be for the Justice Department to convince courts to keep rioters who are charged with relatively basic initial complaints behind bars, especially as they build out cases before a federal grand jury.
The Justice Department indicated in court it will seek an appeal to challenge Nordean’s release. The department has appealed several similar rulings nationwide.
Magistrate Judge Brian Tsuchida’s decision on Monday included putting Nordean on a nightly curfew, restricting his travel to Washington state and Washington, DC, for court appearances, and barring his communication with other witnesses in the case — which will likely include several Proud Boys who prosecutors say he communicated with on January 6. Tsuchida has not placed him on more restrictive release terms, such as home detention or GPS monitoring, or even set a monetary bail amount.
“While you are out, you must maintain good conduct,” Tsuchida said on Monday.
Nordean has been held since his arrest last week and has not yet been released.
He faces charges of aiding and abetting injury to government property, obstructing an official proceeding, entering the restricted grounds of the Capitol and disorderly conduct.
DOJ argued Norden could be a ‘potentially catastrophic risk’
On Friday, prosecutors had argued in some of their strongest language about Capitol rioters to date that the Proud Boys could work together to coordinate more attacks on American democracy, if Nordean were to be released. They also revealed more about how investigators are pursuing the group’s actions as a whole in a memo to the court arguing for his detention.
“There is no reason to believe that Defendant, or any of his Proud Boy associates, are any more interested in ‘complacency,’ or any less interested in fomenting rebellion, than they were on January 5. If nothing else, the events of January 6, 2021, have exposed the size and determination of right-wing fringe groups in the United States, and their willingness to place themselves and others in danger to further their political ideology,” the prosecutors said.
“Releasing Defendant to rejoin their fold and plan their next attack poses a potentially catastrophic risk of danger to the community,” the prosecutors added.
Focus on larger operation
The memo put new focus on the larger Proud Boys operation and on the group’s leader Enrique Tarrio. Prosecutors described how Tarrio, who was arrested before January 6 and thus did not attend the riot, spoke with others to plot their actions on the day of the riot.
Tarrio does not face federal charges but was charged in DC’s local court for his actions during a previous protest in the capital.
Other Proud Boys are charged separately related to the riot, and some, including the Hawaii chapter founder Nicholas Ochs, have been released and now face conspiracy counts.
Prosecutors’ court filings in the Nordean case have indicated how investigators are circling the actions of several associates of the Proud Boys.
The Justice Department described in one filing that it found “ledgers, notebooks, and other records related to Proud Boys operations” as well as a radio system the Proud Boys appeared to have used to communicate on January 6, when law enforcement searched Nordean’s house, indicating that prosecutors are piecing together evidence that could be used in Nordean’s and other cases related to the Proud Boys.
Several other associates of the extremist group are separately facing charges.
The investigators also found his laptop, cell phone and cameras with video and photos, the court filing on Friday said.
Federal officials have said repeatedly in recent weeks they are looking into extremist groups that attended the riot — and considering charging possible seditious conspiracies. But cases are still moving slowly and in the early stages. No sedition cases have been brought.
Use of social media
In his initial charges, prosecutors alleged Nordean used social media to advocate for the Proud Boys protecting the country and going to Washington, DC, and how he asked for contributions for buying “protective gear” and “communications equipment.”
Nordean had effectively used social media in the past to raise his status among the Proud Boys after a video of him punching a protester at a rally in Portland last year went viral, prosecutors noted.
Nordean’s attorney in Washington state argued that he didn’t condone violence and had punched the person at the prior rally out of self-defense, wasn’t a danger to others and wouldn’t flee his court proceedings.
The most serious charge he faces, of aiding and abetting government property, which can be considered a crime of terrorism under the law, wasn’t specific enough in his court record on the extent of the damage or how he helped allegedly destroy police barriers and a window, his defense attorney argued.
“Mr. Nordean’s alleged membership in the Proud Boys does not make him a danger to others or the community,” his defense team had written to the court. “While the government devotes a portion of its lengthy memorandum to the statements and actions of other alleged members of the Proud Boys, none of the footage suggests that Mr. Nordean himself was involved in anything more serious or sinister.”
In Nordean’s case, prosecutors tried to argue he had a passport at the ready that was of another man, and had expressed interest in moving out of Washington state. But his defense attorney on Monday argued that didn’t show he was ready to flee — and that the passport belonged to his wife’s ex-partner, whom he didn’t closely resemble.
This story has been updated with additional information.
CNN’s Emma Tucker contributed to this report.
