When Kash Patel boosted the J6 Choir claiming the video of those housed in DC Jail in March 2023 was proof of a two-tier system of justice, he was suggesting that someone who brought a crowbar — which he called a “weapon” — to the Capitol while promising to drag members of Congress through the streets, then assaulted cops protecting Congress, should not be detained while awaiting trial for assaulting cops.

That’s the significance of Ryan Nichols’ inclusion in the footnote Jack Smith put in his report, listing the identities of some of the J6 Choir members Trump had endorsed.

Nichols was in jail because of the threats he posed to members of Congress.

I’m hearing that Pence just caved. I’m hearing reports that Pence caved. I’m telling you if Pence caved, we’re gonna drag motherfuckers through the streets. You fucking politicians are going to get fucking drug through the streets. Because we’re not going to have our fucking shit stolen. We’re not going to have our election or our country stolen. If we find out you politicians voted for it, we’re going to drag your fucking ass through the streets. Because it’s the second fucking revolution and we’re fucking done. I’m telling you right now, Ryan Nichols said it. If you voted for fucking treason, we’re going to drag your fucking ass through the streets. So let us find out, let the patriots find out that you fucking treasoned this country. We’re gonna drag your fucking ass through the street. You think we’re here for no reason? You think we patriots are here for no reason? You think we came just to fucking watch you run over us? No. You want to take it from us, motherfucker we’ll take it back from you.

And even then, he didn’t remain in prison for the period before he pled guilty.

Nichols challenged his treatment in the DC jail, complaining about the seizure of his discovery and claiming that his incarceration was exacerbating his known PTSD diagnosis. He was further involved in an altercation in September 2022, after which he was segregated, then moved to another facility. He had repeated diagnosis issues with his health care. So in November 2022, Judge Thomas Hogan released Nichols from custody, and he remained out until he pled guilty on November 7, 2023.

But ultimately, Reagan appointee Royce Lamberth sentenced Nichols to what would have been three more years in prison — a total of 63 months and (because Nichols refused to cooperate with Probation on his finances) a record $200,000 fine, one the pardon will presumably wipe away entirely.

Nichols blamed his untreated PTSD for his actions. But Nichols’ sentencing memo revealed a 2019 arrest for assault causing bodily harm that resulted in diversion, one that belies his defense attorney claim he had never been violent before January 6. And prosecutors’ sentencing memo raised all the conspiracy claims Nichols made — many of the same claims that Kash Patel has made about him and others — raising some question about his remorse for his actions.

In addition, although Nichols “agreed with the conduct described in the Statement of Offense” in his presentence interview, PSR ¶ 50, in a post circulated after the plea hearing, members of Nichols’ defense team refers to him as a “political prisoner.” Exhibit J (Substack blog post authored by defense team law clerk present at counsel table for the plea hearing titled “Ryan Nichols: Political Prisoner Of His Own Country”); see also Exhibit K (GiveSendGo page titled “Free My Patriot Prisoner” with messages attributed to Nichols, his wife, and his father prior to the defendant’s plea). Even prior to Nichols entering his plea, his attorney was tweeting statements that directly contradicted the statement of offense in this case. See Exhibit M (October 30, 2023, twitter post from Nichols’ lead counsel).12 These statements threaten “public trust in the rule of law and the criminal justice system [, which] is paramount in the context of January 6 cases.” United States v. Nester, 22-cr-183 (TSC), ECF No. 113 at 6 (internal citation omitted). While the government does not attribute counsel’s statements to the defendant himself (nor does it base its recommendation on such bombastic rhetoric), this Court must appropriately assess whether the defendant has independently accepted responsibility for his criminal conduct. Pleading guilty is not simply the same as accepting the consequences and showcasing remorse under these trying and unique circumstances.

12 The government also notes that, in the months leading up to his plea, Nichols was claiming in public court filings that, in effect, “shadowy teams of plainclothes government agents orchestrated the attack [on the Capitol], leaving a far larger number of innocent Americans to take the fall.” ECF 266 (Order Denying Defendant’s Motion for Disclosure) at 13; see also ECF 244 (Motion for Disclosure), 245 (Supp. Motion for Disclosure), and ECF 251 (Reply to Government’s Opposition to Motion for Disclosure)

The sentence Judge Lamberth imposed in May 2022, 63 months, was about 75% of the government ask of 83 months. While Nichols had a lot of heartfelt things to say about his actions, Judge Lamberth noted that Jan6ers had repeatedly reneged on their statements of remorse, which the recent statements laid out in the government sentencing motion addressed.

Importantly, Nichols himself noted that the solitary confinement to which he was subjected was a COVID protocol, not anything specifically targeting Jan6ers.

I spent months in solitary confinement for 23 to 32-plus hours at a time due to COVID protocols, only allowed out for one hour to shower or make a phone call just to be locked in that 10-by-7-foot cell for another 23 to 32-plus hours at a time. Mental torture is an understatement. I heard grown men screaming and crying out for their mothers, me included. Many nights, I cried myself to sleep. With no court dates, no discovery, and no ending in sight, I felt hopeless and my mental health spiraled out of control. Eventually, I decided that, maybe, I needed to seek professional help. I put in a mental health request, and two weeks later I was back on Zoloft. Though this certainly helped control my mind and get my emotional imbalance in alignment, the solitary confinement was still overwhelming.

And he expressed empathy with the incarceration of people of color.

Your Honor, I know, after almost two-and-a-half years of incarceration, how terrible jail and prison is. The entire atmosphere is violent, dark, and unforgiving. For the majority of my life, I’ve heard, but never been able to empathize with, people of color when they testified to the harsh environment and treatment within the jail and the prison system. Make no mistake, I am now a witness to their testimony. Being in jail and prison is a living hell of eternal separation from the light. Sometimes it feels like not even God himself can penetrate those walls.

Nichols’ PTSD and other maladies did make incarceration onerous. The DC jail treated him just as shitty as it treats everyone else. And he was released because of it.

But that’s not a proof of a two-tier system of justice. That’s proof that America’s prisons suck, and that Jan6ers had more success in using that to get released than others.

Ultimately, though, Patel is claiming that one can get in your truck with guns in the back, drive to DC, threaten to drag people like Lindsey Graham and Chuck Grassley through the streets because they certified Joe Biden’s win, spray cops with toxic chemicals, and then call on the mob to grab more weapons to break into the Capitol, and not be assigned to pre-trial detention. That’s what Nichols did: He directly threatened Senators, both Republicans and Democrats. The notion that Nichols was improperly detained suggests one can assault cops after threatening the members of Congress they’re protecting with impunity.

And that’s what the aspiring FBI Director has said: that people can threaten to assault the very people who are rushing to confirm him with impunity.