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Trevor McFadden Uses Stormtroopers to Justify His Promise to Let Jan6ers Off Easy

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In the middle of a rather cursory opinion rejecting David Judd’s claim that he has been selectively prosecuted as compared to Portland rioters, Trevor McFadden cites this AP story to support a claim that “thousands” of protestors gathered every night in Portland.

For the first prong, Judd argues that he is similarly situated to multiple defendants who faced charges in the District of Oregon. Those defendants rioted outside the Mark Hatfield Federal Courthouse in Portland during the summer of 2020. See Def.’s Mot. at 2–4. The riots erupted after the death of George Floyd in May 2020 and raged for months. Thousands gathered nightly, vandalizing the courthouse and hurling objects at federal agents guarding it. Officers responded with tear gas and rubber bullets to disperse rioters, but the riots continued, causing havoc. See generally Mike Balsamo and Gillian Flaccus, On Portland’s Street: Anger, fear, and a fence that divides, AP News (July 27, 2020). [my emphasis]

In fact, the story says that the 4,000 gathered on that particular night was the largest crowd federal officers had seen, not that those kinds of numbers consistently came out.

Under orders to protect the courthouse — federal property that has been increasingly targeted as the city’s protests against racial injustice march on — the agents were accustomed to the drill. But tonight, the crowd was huge, estimated at 4,000 people at its peak and the largest they had seen.

The numbers the AP cites for those involved in violence or those that remained after officers responded is smaller.

As she spoke, small pods of three to four protesters dressed in black circulated in the crowd, stopping every few minutes to point green laser beams in the eyes of agents posted as lookouts on porticoes on the courthouse’s upper stories.

[snip]

Outside, hundreds of protesters surged back from the courthouse with each new round of tear gas, dumped saline solution and water into their stinging eyes, vomited or doubled over to catch their breath, then regrouped to march back to the fence.

“Stay together, stay tight! We do this every night!” they chanted.

The protesters’ numbers, however, were half what they had been just a few hours before.

[snip]

Tear gas canisters bounced and rolled in the street, their payload fizzing out into the air before protesters picked them up and hurled them back over the fence at the agents, who held their ground.

A woman weaved through the crowd of the few hundred people who remained and told someone on the phone, “We’ve reached some kind of stand-off, I think.”

When the federal agents finally came, they came with force. [my emphasis]

So it actually doesn’t support McFadden’s claim, which is probably why he cites it, “generally:” to hide that in fact he doesn’t have a source for his claim about sustained crowds of thousands of rioters (though at that time in July 2020, protests did remain large for a brief period).

The article is not one David Judd cited himself in either his original motion or his reply — perhaps because the AP story makes it crystal clear why firecrackers are so dangerous when thrown at cops, as he is accused of doing.

That McFadden’s clerk did research on their own on the Portland unrest and that McFadden’s clerk chose this particular article — by one of Billy Barr’s favorite reporters and covering unrest overnight on July 24 to 25, 2020 — is really telling. That’s true because the story portrays details directly pertinent to Judge McFadden’s opinion that should, but do not, appear in his opinion. And it’s also true because McFadden’s clerk relied on the AP story and not this NYT story from the same week covering the same unrest, which I’ll come back to.

At the core of Judd’s argument is that those charged with violence in Portland got (starting even under Billy Barr) and continue to get (under Merrick Garland) Deferred Prosecution Agreements, rather than the felony charges Judd is facing. To make his argument, Judd cherry-picked some cases and complained that he wasn’t being treated as nicely as a guy who (unlike Judd) was charged with a crime of terrorism, but whose charges were dismissed when the guy was murdered. DOJ pointed out more problems with Judd’s claims, including that he had claimed felony assault charges were misdemeanors, left out cases similar to his that were charged similarly, and ignored cases where DOJ deferred to state prosecution.

But DOJ professed to be unaware of the reason why three cases on which Judd (and McFadden) focused closely led to a DPA.

Further, contrary to his claims, each of the three cases Judd cites in his motion as examples where a defendant had only been charged with a misdemeanor actually involved a felony charge to 18 U.S.C. § 111(a). Although it is true that each case was eventually dismissed by the government for unknown reasons (typically after the defendants repeatedly agreed to waive their rights to a preliminary hearing or indictment over a period of months), all were initially facing felony charges. [my emphasis]

DOJ’s claim not to know why these cases entered into a DPA is just as suspect as McFadden’s choice of a source for the crowd sizes in Portland.

That’s because the three cases at the core of this debate all appear to involve assaults not at Portland Federal courthouse (marked with the green arrow), but assaults a block away, not on Federal property at all, probably close to the blue arrows marked below.

  • David Bouchard, arrested overnight on July 23-24 at Main and 4th by a Federal Protection Services officer stationed in Colorado
  • Joshua Webb, arrested overnight by a US Marshal on July 25-26 on Salman between 4th and 5th by a US Marshal
  • Thomas Johnson, arrested overnight by a US Marshal on July 25-26 “in the park” (but because it appears to be the same instance as Webb, probably towards Main & 4th) by a US Marshal

All three of these arrest affidavits include a drawing of the city block that is Federal property, and then describe arrests that don’t take place on that Federal property.

The arrest affidavits offer no explanation for what led the Federal agents to leave the courthouse they were purportedly defending.

Specifically, on July 26, 2020, federal law enforcement officers attempted to disperse a crowd on SW Salmon Street between 4th and 5th streets in Portland, OR. The crowd was part of a protest that was declared an unlawful assembly by the Federal Protective Service and a riot by the Portland Police Bureau.

In other words, the story McFadden cites for his claim that there were thousands involved in the unrest involved direct reporting from the site the day between these arrests. His clerk researched and found a story about Portland from the week of these arrests, which featured elevated hostility and significantly expanded numbers, because (as even that story noted) Portland was reacting against Billy Barr’s decision to send in Federal agents.

Which brings us back to the NYT story that McFadden could have but did not rely on. It describes that on Friday morning — overnight on July 23 to 24, so covering events from the day when Bouchard was arrested — Federal officers were prowling the streets blocks away from the Hatfield Court House that they were purportedly protecting. And that created legal problems,

After flooding the streets around the federal courthouse in Portland with tear gas during Friday’s early morning hours, dozens of federal officers in camouflage and tactical gear stood in formation around the front of the building.

Then, as one protester blared a soundtrack of “The Imperial March,” the officers started advancing. Through the acrid haze, they continued to fire flash grenades and welt-inducing marble-size balls filled with caustic chemicals. They moved down Main Street and continued up the hill, where one of the agents announced over a loudspeaker: “This is an unlawful assembly.”

By the time the security forces halted their advance, the federal courthouse they had been sent to protect was out of sight — two blocks behind them.

The aggressive incursion of federal officers into Portland has been stretching the legal limits of federal law enforcement, as agents with batons and riot gear range deep into the streets of a city whose leadership has made it clear they are not welcome.

[snip]

Robert Tsai, a professor at the Washington College of Law at American University, said the nation’s founders explicitly left local policing within the jurisdiction of local authorities.

He questioned whether the federal agents had the right to extend their operations blocks away from the buildings they are protecting.

“If the federal troops are starting to wander the streets, they appear to be crossing the line into general policing, which is outside their powers,” Professor Tsai said.

Homeland Security officials say they are operating under a federal statute that permits federal agents to venture outside the boundaries of the courthouse to “conduct investigations” into crimes against federal property or officers.

But patrolling the streets and detaining or tear-gassing protesters go beyond that legal authority, said David Lapan, the former spokesman for the agency when it was led by John Kelly, Mr. Trump’s first secretary of homeland security.

“That’s not an investigation,” Mr. Lapan said. “That’s just a show of force.”

Indeed, these particular arrests happened just after the Portland City Council voted to cease cooperating with Federal authorities, as described by a DHS OIG Report reviewing the deployment (which McFadden’s clerk might have used to source a claim that the largest protest reached 10,000 participants, but which would have made the authorization problem clear), meaning that invoking the Portland Police Bureau covering the city generally (including where these arrests seem to have taken place) was particularly problematic.

However, on July 22, 2020, the Portland City Council voted to cease cooperation between the Portland Police Bureau and Federal law enforcement. The Portland City Council viewed Federal operations in Portland as an “unprecedented and unconstitutional abuse of power” by the Federal Government.11 According to the Portland City Council resolution, “the Portland Police Bureau shall not provide, request, or willingly receive operational support … from any agent or employee representing or constituting part of deployment under executive order from the president, be they from Department of Homeland Security, the U.S. Marshals Service, the Federal Protective Service, U.S. Customs and Border Protection or any other service.”1

The OIG Report states that officers had authority to be in Portland, but doesn’t address whether they had legal authority to do what the did in this case: leave the building they were protecting and go blocks away, looking for trouble.

An earlier DHS OIG Report described that officers sent into Portland had not been bureaucratically designated in the way they should have been and raised still-unanswered questions about whether DHS Acting Secretaries acted under legal authority when sending troops to Portland.

In other words, there seems to be a ready explanation — one that both DOJ and McFadden have reasons to suppress — for why these cases were diverted: for a number of reasons, the arrests were made under dubious legal authority. (At least one of the other ones Judd cites may have involved less-than-lethal force violation.)

But Trevor McFadden, who made very clear he wanted to consider this kind of selective prosecution claim and has whined for months that Jan6ers are being treated differently, doesn’t mention this ready explanation which (given the research his clerk did to find the AP article and others not included in the record before that) at least his clerk must know. Instead, McFadden goes on a multi-paragraph rant suggesting that DOJ — starting under, “a Republican-appointed U.S. Attorney (under the direction of a Republican-appointed Attorney General),” he notes elsewhere — started diverting these prosecutions in significant numbers.

Judd’s claim is nontrivial. His chart suggests that Portland defendants generally received much lighter treatment than he has. For example, three Portland defendants allegedly struck officers in various ways. One placed an officer in a headlock. See United States v. Bouchard, No. 3:20-mj-00165 (D. Or.), ECF No. 1-1 at 4–5. Another punched and hit an officer in the face with a shield. See United States v. Webb, No. 3:20-mj-00169 (D. Or.), ECF No. 1 at 5. Yet another struck officers with a shield after he tried to pick up a smoke grenade. See United States v. Johnson, No. 3:20-mj-00170 (D. Or.), ECF No. 1 at 5. The Government charged these three defendants with felony assault on a federal officer, just as it charged Judd here. See Gov’t Opp’n at 17–18. That makes some sense—Judd was likewise allegedly present for a fracas with law enforcement at a federal building and used a firecracker (which if it had exploded, would have caused “bodily injury”) to “intimidate” law enforcement. 18 U.S.C. § 111(a). The Government could justifiably seek felony convictions for both Judd and the Portland defendants.

But, incredibly, the Government dismissed the charges against all three Portland defendants. See Bouchard, Motion to Dismiss Complaint, ECF No. 16; Webb, Motion to Dismiss Complaint, ECF No. 22; Johnson, Motion to Dismiss Complaint, ECF No. 9. Judd still faces nine charges, including multiple felonies, even though the Government never alleges that he, unlike the Portland defendants, struck or injured an officer. That he still faces greater charges than the Portland defendants despite that key difference is suspicious.5 That is the kind of “different treatment” that might warrant discovery. Armstrong, 517 U.S. at 470.

The Government responds that it treated Judd and the three Portland defendants equitably because it filed felony charges against all of them. See Gov’t Opp’n at 18. The Government seems to think that the initial charges are all that matter. Not so. By that logic, the Government could avoid discovery of a race-based selective prosecution claim if it indicted similarly situated black and white persons, dismissed the charges against the whites, and prosecuted the black defendants to conviction or plea. The “administration of a criminal law” is not limited to an initial charging decision. Armstrong, 517 U.S. at 464. Nor is it so easily circumvented.

More, the Government’s logic would allow it to charge similarly situated black defendants with felonies and white defendants with misdemeanors. But discriminatory effects include disparities in the “crimes charged.” Stone, 394 F. Supp. 3d at 31. The Government’s argument is thus absurd and untenable—that the Government originally indicted the Portland defendants does not erase the potential for discriminatory effect.6

Nor does the Court accept the Government’s attempt to distinguish these Portland cases on evidentiary grounds. According to the Government, video footage of Judd’s actions solidified the case against him, precluding a dismissal. See Gov’t Opp’n at 20. In contrast, Portland cases relied on officer recollections during nighttime attacks—none captured on video—by mostly masked assailants. See id. Fair enough. This could explain why fewer defendants overall were charged in Portland than here. But by indicting those cases, the Portland prosecutors presumably believed they had sufficient evidence to sustain convictions. See Justice Manual § 9-27.220 cmt. (“[N]o prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.”). If anything, that fact supports Judd’s argument. Evidentiary differences notwithstanding, the Government felt it had enough basis to charge both Judd and Portland defendants. Yet the Government dismissed the charges against only Portland defendants. The suggestion that Portland cases suffered from widespread, post-indictment, evidentiary challenges is thus a tough argument to swallow.

[snip]

Therein lies a troubling theme that emerges from a wholesale analysis of the Government’s decisions in Portland. The Government dismissed 27 cases brought against Portland defendants, including five felony cases. See generally Appendix to Def.’s Mot. Dismissal of one felony case is unusual. Dismissal of five is downright rare and potentially suspicious.7 Rarely has the Government shown so little interest in vigorously prosecuting those who attack federal officers. Considered in this light, when compared to Portland cases, the disposition of Judd’s case appears an outlier.

5 The D.C. U.S. Attorney’s Office also dismissed charges against the one D.C. defendant mentioned by Judd. She allegedly threw a firecracker at police during a Black Lives Matter protest in August 2020. See Affidavit in Support of Arrest Warrant, United States v. Rogers, No. 2020 CF3 006970 (D.C. Super. Ct. dismissed Sept. 30, 2020). The firecracker burned the pant leg of one officer. See id.

6 The Government wisely dropped this argument at the motion hearing. See Hr’g Tr. at 66.

7 By way of comparison, the Court knows of only one January 6 case that the Government has dismissed among the hundreds of defendants charged for their alleged actions on that day. See United States v. Kelly, No. 21-mj-00128 (D.D.C., dismissed on June 1, 2021). [my emphasis]

DC District’s Trumpiest judge here uses diversions most likely necessitated by the legal abuses and bureaucratic incompetence of the Trump Administration to claim that Jan6ers are being treated poorly. He focuses on arrests made, in very significant part, to fulfill Barr’s priority on such prosecutions in summer 2020, while ignoring the legally suspect circumstances created by Barr’s effort to gin up arrests. And he does so even as he refuses discovery that might confirm this most obvious of explanations.

The proper comparison to the cases McFadden focuses on would be to examine the arrests on January 5 and 6 in DC made by Federal officers away from the Capitol, such as Freedom Square. Yet in that case (particularly at the Washington Monument before the riot kicked off), the evidence suggests that Federal officers were far too lenient on Jan 6, even in the nation’s Capitol on Federal land. At least in the three cases as the center of this dispute, the disparate treatment in Portland appears to have come in the arrests outside of Federal property, not the prosecutorial diversions of those arrests later. Such a comparison would make it clear that Federal authorities treated Trump’s supporters far too lightly, not the opposite.

But McFadden has a goal here, one that — as he notes — he has been developing since at least July.

McFadden properly rules that Judd has not shown enough evidence of selective prosecution to get discovery into why these other prosecutions were diverted (in that, he may have been bound by an opinion issued days earlier by Trump appointee Carl Nichols in the Garret Miller case). Both Trump appointees note that Jan 6 is different from Portland for a number of reasons. In fact, McFadden cites Nichols in describing what he sees to be the difference.

Putting aside any claims that January 6 rioters sought to tear down our system of government (an allegation not made against Judd), their actions endangered hundreds of federal officials in the Capitol complex. Members of Congress cowered under chairs while staffers blockaded themselves in offices, fearing physical attacks from the rioters. See Lindsay Wise, Catherine Lucey, and Andrew Restuccia, “The Protestors Are in the Building.” Inside the Capitol Stormed by a Pro-Trump Mob, Wall St. J. (Jan. 6, 2021, 11:53 P.M.).8 The action in Portland, though destructive and ominous, caused no similar threat to civilians. Accord United States v. Miller, No. 21-cr-119 (CBN), slip order at 3 (D.D.C. Dec. 21, 2021) (“Nor did the Portland rioters, unlike those who assailed America’s Capitol in 2021, make it past the buildings’ outer defenses.”). Given the “narrow[ ]” interpretation of “similarly situated,” Stone, 394 F. Supp. 3d at 31, the Court cannot say that the Portland defendants “committed roughly the same crime under roughly the same circumstances” as Judd, Khanu, 664 F. Supp. 2d at 32.

But even after having laid out reasons (but ignoring the legal problems introduced by Federal big-footing in Portland) why you cannot compare Portland and Jan6, McFadden — who, again, invited this challenge — concludes that he will sentence Jan6ers leniently because he’s sure they’re being mistreated. McFadden cites himself saying he’ll account for such disparities at sentencing in the very same paragraph where he denies discovery to find out whether there’s an obvious explanation for such claimed disparities.

None of this suggests that the distinctions Judd highlights are irrelevant for all purposes. “Disparate charging decisions in similar circumstances may be relevant at sentencing.” United States v. Griffin, — F. Supp. 3d —, 2021 WL 2778557 at *7 (D.D.C. July 2, 2021); cf. 18 U.S.C. § 3553(a)(6) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). But on this record, those disparate outcomes fail to justify the discovery he seeks.

Then he cites Merrick Garland thinking he’s being clever.

Justice requires that “like cases be treated alike” and that “there not be one rule for Democrats and another for Republicans.” Merrick Garland, Remarks to DOJ Employees on His First Day, (Mar. 11, 2021).10 Otherwise, prosecutions risk becoming “so unequal and oppressive” as to deny the rights of all. Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886). Especially during moments of politically charged unrest, the Justice Department must strive for even-handed justice. Judd raises troubling questions about the Department’s adherence to this imperative in Portland. But for the reasons stated above, he has not carried his burden to justify further discovery into the Government’s prosecutions.

Make no mistake what this is: It is an otherwise law-and-order touting Federal Judge announcing, in advance, that he’s going to sentence Jan6ers, people who share his political views, leniently because — he claims, even while refusing to order discovery to prove or disprove his hypothesis — Jan6ers are being badly treated.

And in fact he has already been doing that. When he sentenced Danielle Doyle to two months probation and a fine in October, rather than the three years of probation DOJ sought, he said as much.

Trevor McFadden used this challenge to lay out, for at least the third time, his plan to let Jan6ers off easy, presumably including Judd and his co-defendants, accused of attacking cops over the course of hours. And in the course of doing so, he has suppressed the evidence showing that the disparity, in fact, pertains to overpolicing, not lenient prosecutions, in Portland.

Update: In June DHS provided Ron Wyden with responses to some of his questions about the deployment. They claim they can operate 1-3 blocks from the Federal property which could include all of these arrests.

Practically speaking, DHS personnel deployed to support FPS in protecting federal property in Portland, like the Hatfield U.S. Courthouse, dispersed crowds approximately one to three blocks away from the federal property to secure the perimeter, contain/mitigate fires, treat officer injuries, and otherwise reconstitute facility security.

As set forth above, 40 U.S.C. § 1315 does grant cross-designated law enforcement personnel certain authorities at a distance from federal property. For instance, a cross-designated officer or agent may make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent, or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony. Similarly, such an officer or agent may conduct.

What is the appropriate sanction for a “pawn” who participated in a coup attempt?

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One thing I informally track in January 6 guilty pleas is education level. At the beginning of most change of plea hearings, as part of an effort to substantiate competence to plead guilty, most judges ask, “How far did you go in school?” I first started to take note when Oath Keeper Graydon Young replied that he has a graduate degree. He’s a dramatic outlier. Since then, my very informal tracking of this detail has shown that very very few of the January 6 defendants who’ve pled guilty so far have a four year degree (others who do include but are not limited to Cleveland Meredith Jr, Jenna Ryan, and Andrew Ericson, the latter of whom finished a CompSci degree since the riot).

I track this demographic not out of intellectual snobbery. I know of some absolutely brilliant people who didn’t finish school (a close family member has been very successful without finishing college, and a good number of the smartest students in the 600 student high school class of which I was valedictorian dropped out short of graduation).

Rather, it’s that based on this unscientific observation, the January 6 defendants who’ve pled guilty are, demographically, dramatically less likely to have a four-year degree than the US population, closer to 10% (perhaps 8 of the 96 people who’ve pled guilty) than the 36% that one might expect of the population more broadly. To be sure, this is not scientific. At least two DC judges don’t ask this question, and my count reflects only those hearings where I was personally listening or another journalist who has become aware of my focus on it has noted it. Plus, there may be reasons why people with less education plead guilty earlier, such as that more of them make up those charged with misdemeanor trespassing. But even Brandon Straka, one of the leaders of the larger Trump movement, described that he went through 12th grade and then got a vocational degree at his change of plea.

January 6 defendants seem disproportionately white and rural, but they also appear to be less educated than the country as a whole, even those who’ve had a good deal of financial success.

I raise all that as background to the sentencing memo for Jack Griffith submitted overnight by Heather Shaner, the same defense attorney who convinced Anna Morgan-Lloyd to do some book reports before sentencing (after which Morgan-Lloyd went straight to Fox News to disclaim her stated remorse).

Shaner doesn’t really address the government’s request for a three month jail term.

Griffith pled guilty to one count of 40 U.S.C. § 5104(e)(2)(G): Parading, Demonstrating, or Picketing in the Capitol Building. As explained below, a custodial sentence is appropriate in this case because Griffith committed his January 6th crime in a manner that trivialized the severity  of the chaotic and dangerous attack, and his later self-promotion and commentary about his participation in the riot demonstrates continued pride in his actions. Griffith had many opportunities to remove himself from the disorder of January 6th but was all too happy to continue his participation. Following his arrest, his casual attitude toward these criminal proceedings demonstrated a lack of respect for this Court—worrying only that he did not want to appear too “cocky” that it was all going to go well for him. By minimizing the seriousness of his conduct, Griffith fails to recognize the harm he caused to his country, the law enforcement officers who were trying to defend it, and others who were working at the Capitol to carry out a Constitutionally mandated process for the peaceful transfer of power

Instead, Shaner focused on what the January 6 riot was, describing it as a coup attempt fomented by people who deliberately manipulated people online.

What occurred on January 6, 2021 was not a naturally developed political protest. It was, I believe, a coup attempt–fomented intentionally by right wing actors who used data mining and psychological manipulation. Vulnerable individuals were identified and persuaded through the internet that it was their patriotic duty to come to Washington to support Trump. In Washington, they were emboldened and ushered down the avenue to “Stop the Steal” and to storm the Capitol.

It is fitting and appropriate to arrest those who participated in the attempted coup. The difficult question is what is the appropriate sanction for a pawn who personally did no physical damage nor assaulted law enforcement– but nonetheless participated in the riot. As Fiona Hill recently stated the “main threats” to democracy come from right-wing actors who are deliberately undermining faith in the “integrity of the election system” and “calling for violence against fellow Americans.” Among the thousands who came to Washington in January and have since been arrested– few among the arrested are the people described by Ambassador Hill. Of the several individuals I have been appointed to represent—none are informed, intentional political actors. Four of the individuals I represent are very young—were heavily reliant on the internet—were uniformed and misinformed. Two individuals suffer from diagnosed mental diseases. The balance of individuals I have come to know and to respect are vulnerable, politically unsophisticated individuals, who are truly confounded by what is happening in our country. Good people with no criminal history—our neighbors– who were fed cynical and dangerous misinformation which destroyed their faith in the integrity of the election system. People who wrongly believed they could save America.

I think Shaner’s description of the event is sound. But I’m not sure she, or anyone, knows the answer to her question: What we do about pawns mobilized for a coup attempt, particularly in the absence of any accountability (yet) for the more powerful coup plotters.

Shaner argues that probation is appropriate for Griffith for two reasons. First, to avoid making a martyr of him.

We should not make pariahs or martyrs of these men and women.

But also to provide a period in which more education can occur.

To save our Union we must be wise. We must be compassionate. We must listen. We must provide the opportunity for the approximately 550 charged misdemeanants to receive more education, and to encourage each of them to study history and to gain civic literacy. Only knowledge—truth based on facts– can foster change. At this critical moment of civil discord and domestic contention –if it is still possible to create a more perfect Union –it must be through education. We cannot force people to learn. But during Probation, we can provide the impetus and the opportunity of continuing education.

This is an argument not about Jack Griffith (and because she’s pitching this to Chief Judge Beryl Howell, who asked with this defendant why DOJ hadn’t charged him more aggressively, it’s unlikely to work). It’s an argument about what the path forward needs to be.

Few people besides Shaner think probation can accomplish what she envisions here (though a three year term of probation will keep defendants supervised and prohibited from owning guns through the next Presidential election). Indeed, the two judges imposing most disparate sentences for trespassers so far, Tanya Chutkan (who has sentenced two trespassers, including Anna Morgan-Lloyd’s buddy, Dona Bissey, to jail terms in the last week), and Trevor McFadden (who has sentenced defendants to far shorter terms of probation than the government asked for, though with extra on top) have come out against probation for these defendants. Chutkan believes Probation is simply too overtaxed to deal with the influx of all these trespassers. McFadden seems to believe what he sees as a debt to society can better be paid through a fine (he imposed the only fine thus far on Danielle Doyle) or community service (which he imposed on Eliel Rosa); McFadden also believes that January 6 defendants are being treated more harshly than other rioters.

Meanwhile, in the case of Robert Reeder, who was first charged with trespassing then, at the last minute, discovered to have assaulted a cop and downplayed that to the FBI, got sentenced to just three months in jail by Thomas Hogan, rather than the six months prosecutors requested rather than charging him with that assault.

I don’t know the answer to Shaner’s question. And I badly wish that Prettyman Courthouse were fully open so I could assume that judges were hashing this out over lunch in their judge’s lunchroom. I know that there are a significant portion of defendants who really were just engaged in the kind of civil disobedience I don’t want criminalized. Though I also know that as DOJ has pushed to move through the misdemeanors and accepted downward pleas from those charged more seriously for a variety of reasons, it has fostered seeming inequities among the growing group of trespassers being sentenced.

Whether or not Shaner is right about Griffith, she’s right about what happened: Coup plotters used conspiracy theories to mobilize thousands, as if in a cult, to storm the Capitol. We need deprogramming as much as we need jail time. And our criminal justice system is probably ill-suited to provide either.

David Judd Claims He’s Not Being Treated as Well as the Teenager Who Got Murdered

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David Judd is accused of, among other things, throwing a lit firecracker at cops as part of the Tunnel fight on January 6.

He is charged as part of the McCaughey omnibus superseding indictment covering the sustained assault that lasted from 1:08 PM through 4:19 PM with the following charges:

  • With Tristan Stevens, attempting to impede an officer from 2:56 to 2:58 PM (Count 16)
  • With assault for throwing the firecracker at 3:06 (Count 22)
  • With Tristan Stevens, assault involving physical contact from 4:15 to 4:19 PM (Count 33)
  • Obstruction, with all his co-defendants (Count 34)
  • Civil disorder, with all his co-defendants (Count 35)
  • Disorderly conduct with a dangerous weapon on grounds where the Vice President was present (Count 38)
  • Engaging in physical violence on grounds where the Vice President was present (Count 46)
  • Disorder conduct in a Capitol Building, with all his co-defendants (Count 52)
  • Act of physical violence in a Capitol Grounds or Building with all his co-defendants (Count 53)

The government attempted to get Judd held pre-trial. But his attorney Elizabeth Mullin succeeded in getting him released to home detention.

He recently filed the second bid by a January 6 defendant to compel discovery to prove that he is being selectively prosecuted as compared with people arrested in conjunction with Portland riots.

Most of the January 6 defendants were vocal supporters of then-President Donald Trump, a Republican, and were protesting Congress’s certification of Democrat Joseph Biden Jr. as the winner of the November presidential election. Many individuals – though not Mr. Judd – then breached the Capitol building with the intent of interrupting Congress’s certification of the election results. Mr. Judd and the rest of the January 6 defendants are being prosecuted by a Democratic administration.

Based on the charging decisions and outcomes sought by the government in Mr. Judd’s case, Mr. Judd believes he has a colorable claim of selective prosecution when contrasted with the government’s charging and prosecutorial decision-making in violent riots in Portland, Oregon in 2020 as well as at least one D.C. riot case in 2020.

In it, he repeatedly claimed he never entered the Capitol (even though he clearly entered the Tunnel).

Eventually a substantial number – though not Mr. Judd – breached and entered the Capitol building.

[snip]

Mr. Judd never entered the Capitol building, he did not bring any weapons to the Capitol,

And he acknowledges that there is abundant video evidence against him, unlike many of those charged in Portland (which is how DOJ distinguished the last attempt to claim selective prosecution failed — there is simply far more evidence against January 6 defendants).

Of course, much of the evidence against Mr. Judd will be video evidence.

Nevertheless, Trevor McFadden — who in a recent sentencing hearing for Danielle Doyle, claimed that DOJ was treating January 6 defendants differently than last summer’s prosecutors, only to be publicly debunked by the AP — showed great interest in Judd’s claim in a status hearing yesterday, going so far as to explain what Judd needed to do in his reply motion (the government has not yet submitted a response) to succeed.

I’ve barely started examining the table Judd submitted with his motion, which lists slightly more than half — 39 of the 74 — people he says were charged in an attack on the Portland Federal Courthouse; I assume (and hope) prosecutors are doing a far more thorough job, because it’s important for McFadden to understand many public claims about these other riots are false.

Certain problems with Judd’s claims — on top of the evidentiary differences and the fact that rioters were not attempting to stop an event over which the Vice President was present and presiding — are quite clear.

For example, the case that Judd says is most similar, in which Ty Fox is being prosecuted for throwing a firecracker, Fox is being detained pre-trial and prosecuted by the state of Oregon with his federal charges continued pending that case.

On September 23, 2021, I spoke with AUSA Thomas Ratcliffe concerning Mr. Fox. Mr. Ratcliffe is unopposed to a 90-day continuance of this matter. After our call, Mr. Ratcliffe provided me with a copy of a letter outlining a potential resolution of Mr. Fox’s federal case based on the Government’s Petite Policy for successive prosecution.

I met with Mr. Fox on September 24, 2021, at MCDC -Portland, where he is being held on state charges. During our meeting, Mr. Fox authorized the Federal Public Defender to transfer his file to me. His file, and the discovery, should be forthcoming. I will need time to review and analyze the evidence and offense.

A number of the others appear to have been dismissed for evidentiary reasons (that is, precisely the reason why — DOJ argued — that it is easier to prosecute Jan 6 defendants, because there is far better evidence, which Judd as much as concedes by noting the video evidence against him in his filing).

But even more telling, Judd included the other most similar case to his own, in which Isaiah Maza Jr. allegedly took a firecracker during a mob attack on a Federal building and threw it into a the doorway of the courthouse, which injured an officer (who may not have been visible to Maza). Maza was charged with assault as well as damaging a federal building, a crime of terrorism. By including Maza in this table, Judd is arguing that Maza was treated differently than he is being because a Democratic Administration is giving him favorable treatment.

It is true that the charges against Maza were dismissed. But they were dismissed — as Judd himself admits — because Maza died.

What Judd doesn’t admit is that Maza was murdered.

Nineteen-year-old Isaiah Jason Maza Jr. was on a pass from his inpatient alcohol treatment at the Oregon Recovery Center when he was fatally stabbed near his mother’s home Sunday in Northeast Portland.

Maza had been released in September pending trial on federal charges for allegedly tossing an explosive through a broken window of the federal courthouse downtown in July and injuring a deputy U.S. marshal.

His mother, his defense lawyer and even prosecutors said Maza had been doing everything right while on release.

He had a job at Macy’s, was taking his treatment seriously, had applied to Portland State University to continue his education and was fighting to get visitation rights with his young daughter, whose name he had tattooed on his neck.

His mother Renee Maza said she was making dinner Sunday night when her son and his girlfriend wanted to walk to a nearby corner store to buy Takis chips.

“I don’t ever let my kids walk at night here,” Renee Maza said Monday. “It’s a bad area. I usually drive them. But I was cooking and I said to him, ‘There are a lot of thugs out there. You know how I feel about walking.’ He said to me, ‘Mama, I’ll be safe. We are just getting chips. I love you.’’’

Isaiah Maza didn’t get far. He was stabbed around 5:30 p.m. near Northeast 120th Avenue and Couch Street outside an apartment complex next to his mother’s home, according to the teen’s girlfriend and mother.

This is Judd’s argument: that he’s not being treated fairly because he wasn’t doubly charged in violation of federal practice and because he wasn’t murdered before standing trial.

Again, I’ve barely scratched the surface of the cases that Judd claims are similar. But thus far, his argument amounts to claiming that he’s being treated unfairly because another guy got murdered.

January 6: The Trespasser Testimonials

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The other day, when accepting her first misdemeanor January 6 plea, Chief Judge Beryl Howell expressed dismay that Jack Griffith was getting such a lenient plea for taking part in a violent mob that terrorized Congress and the Vice President. In response, his attorney Heather Shaner and the prosecutor Mitra Jafary-Hariri defended the deal, in part, by talking about how cooperative Griffith was. In response, Judge Howell distinguished simple cooperation from a cooperation deal, which requires extended work with prosecutors to indict others.

Howell is not wrong.

But this post has convinced me of something I already suspected: DOJ is using even misdemeanor plea deals to build their larger case. As I noted, the statement of offense to which Eliel Rosa pled guilty described that before he entered the Upper West Terrace door at 2:35PM and passed cops who had not put up much resistance to rioters, he had witnessed “people with megaphones shouting, ‘Go, Go, Go'” and smelled pepper spray which made it clear to him that “law enforcement was present and in front of the advancing group.” This sworn allocution will make it harder for people like Ethan Nordean to claim that, when he entered the same door minutes later, he had no way of knowing that he was trespassing.

Reviewing a good percentage of the misdemeanor pleas so far, it seems most provide one or another kind of support (or both) for the larger case. Some of the defendants pled to details about their own participation that will support the violence of the day. In addition to Rosa (whose testimony will be detrimental to Nordean and others who are claiming because guards didn’t resist he wasn’t trespassing), Kevin Gallagher’s statement of offense will probably be useful in prosecuting Jason Buteau. Some of the other statements of offense describe defendants witnessing other assaults or destruction.

The other way misdemeanor pleas likely will help prosecutors is in validating the video they took during the riot or other testimony such that it will more easily be entered into evidence against other defendants. I’ve long believed that the FBI is focusing some of their arrests of trespassers on those it believes have useful video against more dangerous rioters, and that’s true even of the handful who have pled guilty already. For example, Andrew Bennett’s video must be among the video evidence shared with defendants who broke open the window through which Ashli Babbitt tried to enter. Dona Bissey and Anna Morgan-Lloyd between them took a picture that shows several rioters who stole a sign from Nancy Pelosi’s office (and the government seems very interested in Bissey’s pictures of rioters on the scaffolding). For defendants with useful video, the government needs to ensure the video they collected can be validated to be used against other rioters. In some statements of offense, then, trespassers end up describing taking video and even (sometimes) that they took selfies as part of that video.

Trespassers witness the violence

Bruce Ivey:

After the police line and metal barricades were breached, IVEY walked towards the Senate Wing Door, where he watched another rioter break through the window immediately adjacent to the Senate Wing Door using a riot shield.

Thomas and Lori Vinson:

After the rally, the defendants marched to the U.S. Capitol building, where they entered the first floor at around 2:18 p.m. Cell phone video recorded by the defendants shows broken glass and alarms blaring as they entered. They were present in a first-floor corridor barricaded by law enforcement officers at approximately 2:31 p.m.

Danielle Doyle:

Danielle Nicole Doyle entered the U.S. Capitol building on January 6, 2021, at approximately 2:20 p.m., by climbing through a broken window located next to the Senate Wing Door.

Edward Hemenway and Robert Bauer:

8. On January 6, 2021, after the “Stop the Steal” rally, Robert Bauer and Edward Hemenway, who are cousins, followed a crowd to the U.S. Capitol. As Bauer and Hemenway entered the U.S. Capitol grounds, Hemenway saw a green plastic sign that said, “Do Not Enter,” but continued anyway. As they walked toward the U.S. Capitol building, they saw officers in S.W.A.T.-style gear standing near the scaffolding outside the building. Bauer and Hemenway linked-up with a group walking toward a door into the building. They entered the U.S. Capitol building together with the group at around 2:10 p.m. E.S.T. They then made their way into the Crypt. As they entered the Crypt, Hemenway believed members of the crowd were fighting with police officers.

9. While inside the U.S. Capitol, Bauer and Hemenway chanted, “Stop the Steal!” Bauer also took pictures and videos, and chanted, “Our house! Our house!”

Derek Jancart and Erik Rau:

JANCART and RAU watched from the West Lawn while rioters broke through the police line and rushed up the stairs of the Capitol. RAU video-taped that moment, stating on the video, “We made it up to the Capitol. … We have the police surrounded! We have you surrounded!” In the background, rioters can be heard yelling, “get him!” and “traitors gonna hang!” When the rioters broke through the police line, RAU can be heard screaming, “Yeah! They just pushed through the guards!”

JANCART and RAU then entered the Capitol Building through the Senate Door. JANCART and RAU then traveled through the Crypt. After exiting the Crypt, JANCART and RAU took the stairwell south of the Crypt to the second floor of the Capitol and walked towards the Speaker’s conference room. RAU stepped inside of the Speaker’s conference room while JANCART stayed outside and took a photo.

JANCART posted a photo of the door to the Speaker’s conference room to Facebook with the caption, “We’re in.”

Jack Griffith:

Griffith attended the Stop the Steal rally and then walked to the U.S. Capitol. Griffith unlawfully entered the restricted Capitol grounds, arriving near the North West Scaffolding and Stairs at approximately 2:14 to 2:16 p.m. on January 6, 2021. Griffith spent time in the crowd by the inauguration stage on the west side of the U.S. Capitol building observing members of the crowd attacking law enforcement repeatedly as they tried to keep the crowd away from the building. Griffith then went up the northern set of stairs underneath the scaffolding to the north west terrace near the Senate wing of the building.

Griffith entered a door to the Capitol which had been broken open. Griffith entered the Capitol with his Co-Defendants Eric Chase Torrens and Matthew Bledsoe at approximately 2:18 p.m. The fourth Co-Defendant Blake Reed entered shortly behind Griffith, Torrens and Bledsoe. Griffith’s entrance is captured in surveillance footage and in a selfie-stye video that his Co-Defendant Matthew Bledsoe shared on social media. The selfie-style video shows them immediately outside of an exterior door of the Capitol. An alarm can be heard blaring in the background. Co-Defendant Torrens said, “We’re going in!” The camera then pans to Griffith who screamed in excitement.

Michael Curzio:

Shortly after 2:30 p.m., video surveillance captured Curzio walking inside the Capitol Visitors Center (“CVC”), which is part of the Capitol building. Curzio and others gathered in a CVC corridor at the end of which U.S. Capitol Police officers had formed a defensive line. The officers issued commands for the rioters to leave the building. When rioters refused their commands, the officers began arresting individuals who had unlawfully entered the building, including Curzio. Curzio admitted he refused to leave the premises after being ordered to do so.

Curzio was compliant following his arrest, and later cooperated with law enforcement by providing the Federal Bureau of Investigation (“FBI”) his swipe code so the FBI could search his phone.

Matthew Mazzocco:

During the time relevant to the above described events, the defendant entered the U.S. Capitol and walked around the building. The defendant entered and walked around at least one conference room type-area and walked through various hallways. While doing so, the defendant told others not to take or destroy anything, and that they were probably going to get in trouble for what they were doing.

Kevin Gallagher:

Shortly after 2:30 p.m., video surveillance captured Gallagher walking in the Capitol Visitors Center, which is part of the Capitol building. At one point, Gallagher appeared to admonish another rioter not to throw a chair.

The rioter in question is likely Jason Buteau, who threw a chair in CVC between 2:29 and 2:31, but the moment he actually threw the chair was not caught on camera.

Boyd Camper:

Camper subsequently admitted to law enforcement that he “picked the right hole” to get himself to a stairway area. He saw that the police lines had been broken, as well as persons getting tear gassed and pushing to get inside the building. Camper stated that he believed he was in the frontline of the situation, and that “in my mind, we were going to take the Capitol steps.” Camper also admitted that he went inside the U.S. Capitol building.

Eric Torrens

Torrens spent time in the crowd by the inauguration stage on the west side of the U.S. Capitol building observing members of the crowd throwing items at law enforcement.

Mark Simon

As Simon filmed the video he approached the doorway to the U.S. Capitol, law enforcement officers inside the U.S. Capitol could be seen attempting to remove individuals from the building. Broken glass windows could be observed on two of the doors of the U.S. Capitol, including one that was directly next to Mark Simon while he was taking the video.

Once Mark Simon was in the doorway of the U.S. Capitol building, he turned the camera on himself and said, “In the Capitol baby, yeah!” Shortly thereafter, Mark Simon turned the camera on himself again and said, “2021 Donald Trump!” A screenshot from the portion of the video in which Mark Simon turned the camera on himself is below, along with an image from the video provided to the FBI by a member of the public. A broken glass window is visible directly behind Mark Simon in the first image.

Then-Houston cop Tam Pham

The defendant walked over fences on the Capitol grounds that had been previously knocked over, and saw police officers as he approached the U.S. Capitol Building with a large crowd of people. He continued to walk past a broken or torn down fence, and he passed other barricades on his way to the U.S. Capitol Building

Anthony Sirica:

As SCIRICA approached the Capitol, he saw people on the steps and on the scaffolding outside of the Capitol. SCIRICA saw a large crowd in front of him, and he decided to push his way to the front to see what was happening. He watched as other individuals entered the Capitol. He decided that he want to see it for himself and see what was happening with his own eyes. He heard people yelling and shouting “U.S.A.” chants and “Stop the Steal.” He heard what he believed to be a window breaking. He also heard an alarm going off inside the Capitol. He decided to enter the Capitol any way.

SCIRICA entered the U.S. Capitol on January 6, 2021. He entered through a Senate wing door at approximately 2:24 p.m.

 

While inside the Capitol, SCIRICA walked through the Rotunda at approximately 2:26 p.m., and he walked through Statuary Hall at approximately 2:27 p.m. He took photos and videos as he proceeded through the Capitol.

While inside the Capitol, SCIRICA saw law enforcement officers inside, but he continued to walk around inside the Capitol. He also saw a man push a law enforcement officer while inside the Capitol.

Trespassers validate their own video

Andrew Ryan Bennett:

9. On January 6, 2021, Bennett made his way to the Capitol grounds and began livestreaming video to his Facebook page from outside the building at approximately 1:00 p.m. Bennett eventually unlawfully entered the Capitol along with hundreds of other individuals. At approximately 2:17 p.m., 2:37 p.m., and 2:42 p.m., Bennett livestreamed three videos from inside the building to his Facebook page. During one point in one of those videos, Bennett admonished others not to be destructive inside the Capitol. At multiple points, Bennett turned the camera on himself and captured himself inside the building, wearing a hat with the letters “FAFO,” an abbreviation of a slogan popular among the Proud Boys, a far-right group. There is no evidence Bennett was violent or destructive on the grounds of or inside the Capitol.

10. On January 11, 2021, the Federal Bureau of Investigation (“FBI”) obtained a search warrant for Bennett’s residence in Columbia, Maryland. During the execution of the warrant, the FBI recovered the hat bearing the “FAFO” slogan that Bennett wore inside the Capitol. Following the search, Bennett voluntarily interviewed with the FBI, and admitted that he unlawfully entered the Capitol on January 6, 2021. He also provided the unlock code of his cellphone to the FBI so FBI could search the device, and has been entirely cooperative with the government’s investigation since his arrest on January 26, 2021.

11. Upon further investigation, the FBI found while Bennett attempted to contact a Maryland chapter of the Proud Boys about becoming a member, it did not find evidence that Bennett is a member or associate of any organized chapter of the Proud Boys.

Dona Bissey:

11. After arriving at the Capitol and ascending the steps, the DEFENDANT participated in the protest and took photos of the other protestors, including those in or around the scaffolding on the western front of the building.

12. The DEFENDANT and Morgan-Lloyd then entered the Capitol building and walked through a hallway. While inside the Capitol building, the DEFENDANT appeared in a photo with Morgan-Lloyd and two other individuals, one of whom is holding a Trump campaign flag. The DEFENDANT later posted the photo on Facebook with the caption “Inside the Capitol Building.” The DEFENDANT also posted a picture of an elderly woman with a “Make America Great Again” hat and wrote “This is Our Warrior Linda. We stayed with her and her daughter Stacey all day. They are somewhat locals. When we Marched to Capitol she said “I’m going in” and she lead the way. We went in [] This photo taken at Capitol entry right before[.]” The Defendant also posted a screenshot of a Twitter post which stated “This is the First time the U.S. Capitol had been breached since it was attacked by the British in 1814” and wrote “We were inside for reals! Linda led the way!! She is a True Patriot and Warrior!!!”

13. On January 7, 2021, the DEFENDANT posted a photo on Facebook, tagging Morgan-Lloyd and another individual, and wrote “We are home. Thank You to ALL that messaged checking in and concerned. It was a day I’ll remember forever. I’m proud that I was a part of it! No Shame. BTW turn off the #FakeNews.”

14. On January 8, 2021, the DEFENDANT posted two photos from the western front of the Capitol building. The photo included images of protesters climbing the scaffolding and another other with a protestor holding a stolen and broken sign that read “Speaker of the House.” The DEFENDANT wrote on the post “This really happened! Anna Morgan-Lloyd took the photo.”

15. On January 11, 2021, the DEFENDANT posted a photo on Facebook which showed individuals walking down the steps of the Capitol building. The DEFENDANT wrote “On our way down” and tagged Morgan-Lloyd.

16. On February 24, 2021, the DEFENDANT was interviewed by law enforcement. The DEFENDANT admitted that she had entered the Capitol and remained for less than ten minutes. The DEFENDANT also admitted that she had a photo taken of herself within the building.

Anna Morgan-Lloyd:

On January 6, 2021, in response to a post by L.L.T.P, the DEFENDANT wrote, “I’m here. Best day ever. We stormed the capital building and me and Dona Bissey were in the first 50 people in.”

[snip]

The DEFENDANT also admitted that she used her phone to take photographs in and around the Capitol building and had a photograph taken of herself, Bissey, and two other individuals.

Valerie Ehrke:

At approximately 2:09 p.m. on January 6, 2021, the defendant entered the U.S. Capitol Building with a crowd. The defendant entered one of the hallways of the Capitol Building and took a video from the first-person perspective while she was there. She then uploaded that video to her Facebook page, with a caption reading, “We made it inside, right before they shoved us all out. I took off when I felt pepper spray in my throat! Lol.” A screengrab of that video is attached hereto:

Valerie Ehrke

Jordan Stotts:

11. At approximately 2:45 p.m., STOTTS entered the Capitol building through a door located to the left of the main entrance

12. Once inside the Capitol building, STOTTS walked to the Capitol Rotunda and stayed inside for approximately one hour.

13. While in the rotunda, STOTTS celebrated with other rioters and used his cell phone to take a video.

Robert Reeder:

10. On January 6, 2021, from the steps of the Capitol grounds, the DEFENDANT recorded a video in which he stated: “We’ve been getting tear gassed…thousands of people.” The DEFENDANT then appeared to chant: “Fight for Trump!”

11. As the DEFENDANT approached an open door of the Capitol, a high-pitched alarm can be heard in the background. Capitol Police Officers are seen standing along the wall in the entrance. At the threshold of the building, the DEFENDANT approached Capitol Police Officers and asked: “Is there anywhere where I can get water?” An officer responded: “We don’t have any water in here, sir. There’s some outside.” The DEFENDANT then walked past the Officers, opened an interior door, and proceeded into the Capitol building. From inside the Capitol, the DEFENDANT took numerous photos and videos from various rooms, hallways, and balconies.

12. Although the DEFENDANT briefly left the Capitol building, he then turned around and returned to it. At that time, the DEFENDANT recorded a video of himself chanting “USA!” with the crowd as he approaches the open doors to the Capitol building.

13. The DEFENDANT then recorded another video in which he appears to be within and near the Capitol rotunda near confrontations with Capitol Police Officers. The DEFENDANT recorded an assault on a Capitol Police Officer. The DEFENDANT seemingly told the Officer: “You need to retreat!”

14. After leaving the Capitol building, the DEFENDANT recorded a video from the Capitol grounds in which he stated: “I’m leaving now… I got tear gassed at least four times inside the Capitol…I saw the lady they say got shot, I walked right past her in a pool of blood. And it’s just…completely crazy in there.” The DEFENDANT also stated: “Just left the Capitol, I was one of the last people out. I was in there for over half an hour. I got gassed several times inside the Capitol, many times outside the Capitol. Got shot with pepper balls. It was fucking nuts. We had to do…ah… battle with the Police inside. It was crazy…absolutely insane.”

Jenny Cudd:

While inside of the U.S. Capitol building, Jennifer Ryan took numerous videos and photos from the Rotunda.

Michael Stepakoff:

The defendant can be seen on CCTV video entering the United States Capitol Building at approximately 3:00 PM on January 6, 2021 through a door marked “EXIT” on the interior of the door. While inside the U.S. Capitol Building, the defendant walked past a wooden structure that had been knocked to the ground. He can be seen taking approximately eight photographs using his cellular phone. The defendant exited the Capital Building approximately five minutes after he entered.

Reeder’s arrest affidavit suggests the exchange as he entered the Capitol took place around 2:40, so this may verify that the cops at the West Terrace Door who weren’t fighting protestors — raised in defense by a significant number of defendants — did instruct at least one to go outside.

Trespassers move in interesting ways

Jennifer Parks and Esther Schwemmer:

On January 6, 2021, after the “Stop the Steal” rally, Jennifer Parks and Esther Schwemmer, friends who traveled together from Kansas to Washington, D.C. to attend the rally, followed a crowd to the U.S. Capitol grounds. When they arrived on the Capitol’s grounds, they saw people running up to the doors of the Capitol and took pictures of themselves and others. They relocated to the east side of the Capitol and entered the building through an entry where the doors were broken and open. They went up a round staircase to the second floor and walked around for approximately 15 minutes. They took pictures inside the Capitol. They eventually left the Capitol when they were told to exit the building by a United States Capitol Police officer.

While I’m sure I’ve lost track of some of these misdemeanor guilty pleas, this post shows a good percentage of those who’ve pled already have offered testimony that in one way or another would be useful for further prosecutions. One of the only exceptions is Joshua and Jessica Bustle whose statement of offense largely focuses on their phones, video surveillance, and subsequent social media posts. Perhaps relatedly, in sentencing memos for the Bustles submitted last week, the government recommended three months of home confinement for Jessica (who called Mike Pence a traitor and called for a revolution after the riot) and one month of home confinement for Joshua.