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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.

January 6 Defendant Kevin Creek Ends Up with a Single Assault Charge

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Yesterday, DOJ charged Kevin Douglas Creek with one count of assault. The charge adds to the evidence that DOJ is letting cooperative defendants plead down without entering into a cooperation agreement.

Creek — a former Marine from Georgia — was first charged with assault of what his arrest affidavit called, “multiple officers,” and civil disorder. One of those alleged assaults included kicking a cop.

As the arrest affidavit describes (and I wrote up here), the first tip against Creek came from a hospital worker who described that he admitted his involvement in the riot when getting treated at a hospital for delayed effects from tear gas.

On January 10, 2021, a complainant reported to the FBI that on January 9, 2021 or January 10, 2021, an individual named Kevin Creek made comments while visiting Northside Forsyth Hospital about his involvement at the U.S. Capitol riot on January 6, 2021. Creek disclosed that he was tear gassed at the Capitol on January 6, 2021. Creek discussed running up the stairs of the Capitol building and attempting to get inside. Creek talked about having trouble at the door he ran to because the police were gassing individuals at his door. Creek also mentioned he was bruised from his activity at the Capitol and admitted to a long car ride to get to DC. Creek made general comments regarding always being armed but did not directly say whether he was armed at the Capitol.

Later on, the FBI released Be on the Lookout photos for Creek.

In an FBI interview with counsel on May 21, Creek seemed evasive about how he first learned about the protest and described only partly regretting his conduct at the riot.

Initially, Creek told affiant he was live streaming January 6th and posted the stream and photos on his Facebook account. Creek deleted those photos once he returned home. Creek stated he may have heard about the protest from his twitter account (handle @KevinDCreek) but stated he could not remember for certain.

When asked if Creek regretted his conduct on January 6th, he responded: “50/50”.

Creek was arrested on June 9. After he was jailed for five days, the US Attorney’s Office in Northern Georgia successfully got Creek detained pretrial; the magistrate’s order finding for detention emphasized that he had “assaulted several Capitol Police officers.”

Creek’s attorney moved for release, and Jacob Strain, the AUSA (a detailee from Utah) handling this case agreed, citing (in part) Creek’s, “significant cooperation.”

Based on the defendant’s law-abiding conduct after January 6th, his lack of criminal history, and his significant cooperation with law enforcement, the United States submits its position that conditions can be fashioned to reasonably assure the defendant’s appearance and effectively assure the safety of the community. [my emphasis]

In a hearing, it became clear that DC’s US Attorney’s office was saying Creek should be released while Northern Georgia’s was trying to enforce their District policy that those who assault law enforcement are presumptively detained (Northern Georgia would later try to override the release conditions of one of the few Black January 6 defendants, Antionne Brodnax, who moved into the District).

The thing is, there’s no sign yet of Creek’s, “significant cooperation with law enforcement.” His arrest affidavit makes it clear he went to insurrection with three others, two of whom remained with him until after 4PM.

Travel records obtained from Washington Metropolitan Area Transit Authority confirm that on January 6, 2021 at 8:15am, Creek’s credit card was used to purchase four metro cards. These metro cards were used to traveled from Rosslyn Station McPherson Sq Station at approximately 8:17 am. At 11:07 am, one metro card was used to return to Rosslyn Station from McPherson Station. The other 3 cards returned from Arch-Navy Memorial Station to Rosslyn Station at 4:37 pm. Arch-Navy Memorial Station is located about .8 miles to the U.S. Capitol.

But I’m not aware of any arrests of other people from the Atlanta area who might have traveled with Creek.

His discovery lists the body worn cameras of three officers, including Daniel Hodges.

In short, from early on, DOJ said he had provided “substantial cooperation,” using the word — substantial — usually reserved for 5K letters after a defendant has successfully completed the terms of cooperation agreement. And now, four months after his arrest, his assaults on “multiple officers” have been charged as a assault, presumably setting up a plea hearing (while I assume it’s just a coincidence, his next scheduled hearing date, December 17, is the same date as the coordinated status date for the Oath Keeper cooperators).

It’s not clear what to make of this charging decision. But the discussion around Creek’s pre-trial release seems to suggest cooperation that may explain similarly situated January 6 defendants are being charged with multiple felonies and Creek will presumably plead to a single count.

But this charging decision will have one other effect: Those, like David Judd, who claim only Portland defendants charged with assaulting cops get charges dismissed will now have to explain why a January 6 defendant who traveled across three states to attend the Trump riot will likewise have his civil disorder charge dropped.

Update: This post has been substantially corrected to reflect that this appears to be a felony. Creek was charged by information, but the charge includes physical contact that makes it a felony.

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.

Terrorists in the Tunnel: The Omnibus Indictment for Officer Daniel Hodge’s Assault

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One of the most spectacular assaults from January 6 was that charged against Patrick McCaughey for crushing Officer Daniel Hodges in a door.

McCaughey was charged early — on January 19. Over time, though, his indictment has become more than that — an indictment incorporating the worst assailants involved in a long brutal fight that took place in the Lower West Terrace entrance to the Capitol, deemed the Tunnel. First Tristan Chandler Stevens was added in March. Christopher Quaglin and David Judd were added in April. Robert Morss and Geoffrey Sills were added in June.

On August 4, the government rolled out a superseding indictment that adds two newly charged defendants, Steven Cappuccio and David Mehaffie, and incorporates Freddie Klein into the existing one; it was unsealed yesterday after Cappuccio and Mehaffie were arrested.

A notice filed in both the McCaughey and Klein dockets on July 29 explains the logic of this indictment.

All nine of these individuals are or will be charged primarily with assaultive conduct on law enforcement officers in and around the first landing of the Lower West Terrace as well as the Lower West Terrace archway, colloquially referred to as “the tunnel,” of the United States Capitol Building on January 6, 2021, between approximately 1:00 p.m. and 4:30 p.m. This tunnel entranceway to the Capitol Building, which is approximately ten feet wide, was the site of a significant physical confrontation with law enforcement for several hours. Each of these defendants was an active participant in the first wave of rioters to enter the tunnel between 2:40 and 3:18 p.m., at which time law enforcement successfully cleared the tunnel of rioters for the first time that day. Moreover, several of the defendants, including Mr. Klein, committed additional crimes on the first landing of the Lower Wester Terrace before reaching the tunnel for the first time. Accordingly, because the primary criminal conduct alleged against these individuals overlaps both temporally and geographically, and the evidence against them will be mutually admissible, including the testimony of witnesses and their victims, the government is preparing to charge this group in a single indictment and to present evidence against them in a single trial.

The same notice says that while there are “dozens” of people who committed crimes along with these defendants, they do “not expect” to add any other defendants to this one.

I’ve tried to lay out which defendants got charged with what crimes using what weapons in this table. Altogether, I think this indictment does four different things.

First, Cappuccio is charged with grabbing Hodges’ gas mask and pulling if off and then stealing his police baton.

McCaughey is the guy whose name is on this indictment and who has, since the days after the riot, been one of the chief focal points because of that assault. But Cappuccio was actually the guy alleged to be doing to the most harm to Hodges (a point that McCaughey nodded to in a successful bid to get pretrial release). Cappuccio has finally been added alongside McCaughey, charged in one of the signature assaults of the attack.

Second, this indictment charges Mehaffie along with a bunch of people he gave instructions to during the hours long assaults, as captured by his Sedition Hunter moniker, Tunnel Commander and explained by HuffPo.

Dave Mehaffie of Dayton, Ohio, was known to online investigators as #TunnelCommander because he was issuing orders to members of the mob who were attacking officers during a brutal battle at the lower western terrace entrance to the Capitol. Mehaffie was 86-AFO on the FBI’s Capitol wanted list, meaning he was wanted for assault on a federal officer.

A judge signed an arrest warrant for Mehaffie on Aug. 4 after he was indicted by a grand jury as part of an existing case.

Mehaffie was involved in one of the toughest battles of the Capitol siege. Members of the mob had stormed past police barriers and ascended the scaffolding set up for President Joe Biden’s inauguration on Jan. 20, and were attempting to break into the building. During the “medieval” battle, members of the pro-Trump mob kidnapped D.C. Metropolitan Police Officer Michael Fanone, who was repeatedly electroshocked. Rosanne Boyland, a pro-Trump member of the mob, was trampled during the brutal clash. The woman’s brother-in-law said that former President Donald Trump “incited a riot” that killed one of his “biggest fans.”

Alone among these nine defendants, Mehaffie is not charged with assault using a dangerous weapon and/or directly striking the officer victim (that’s roughly speaking the difference between the 111(a)(1) charges and the 111(b) charges in the table). Instead, Mehaffie is charged with one count of assault and abetting assault, lasting from 2:40 to 3:18, presumably amounting to his directing the assaults of the others, along with civil disorder and obstruction. But that doesn’t convey the seriousness of his actions, because he had a role in making the other assaults more effective.

That’s why including him on this omnibus indictment will be important. By charging all nine men together, DOJ will be able to show how these men, who aren’t alleged to have known each other before the assault and aren’t charged with conspiracy, nevertheless worked in concert, always ensuring there were people at the front to press the assault, with Mehaffie playing a key role in making it all work (Morss, too, had a key role in directing traffic in the tunnel, which will also become clearer at trial with all charged together). In isolation, these men’s assaults can be minimized. In concert, their actions had a devastating effect.

Finally, Klein’s inclusion does more than just get him added to what will be a very powerful trial. He was originally indicted, on March 19, with just one count of assault. By April 5, in a detention memo, DOJ described three different assaults. So DOJ was bound to supersede his initial indictment in any case. This superseding indictment charges him in six different assaults (I think I’ve bolded the ones that appeared in the April detention memo), the culmination of seven months of video review to understand his role.

It also might get Klein detained. Of the seven men who had already been charged, Stevens was released on arrest, McCaughey got released with a huge bond payment, and Judd was released after review. The government successfully fought to keep Quaglin and Morss detained, sustaining Quaglin’s detention on appeal.

Klein also fought successfully for release. Along the way, his attorneys pointed to the conduct of McCaughey and two other of his now co-defendants, claiming they were more dangerous.

Contrast these cases, and the allegations against Mr. Klein, with others detained pretrial and alleged to have engaged in far more egregious conduct including having pinned an officer between a door and a riot shield (McCaughey – 21-cr-00040); violently assaulting an officer in the side of the neck with a riot shield and spraying chemical irritant directly into the eyes of an officer (Quaglin – 21-mj-00355); repeatedly throwing objects, including a pole, a desk drawer, some type of pipe/metal rod, and a flagpole at officers (Jenkins – 21-cr-00245); lighting and throwing fireworks at officers (Judd – 21-mj-00334), and striking an officer so violently with a pole that it shatters on his riot shield (Palmer – 21-mj-00301).

John Bates released Klein (in an opinion that significantly lowered the bar on releasing violent assault defendants). And while the release itself was a defensible decision, Bates’ logic (in my opinion) was not. Bates treated Klein’s assault on the Capitol, as a State Department official, as a breach of trust, but also credited him with having held a security clearance, as if having a cleared individual attack his own government isn’t particularly dangerous (as the government successfully argued in Timothy Hale-Cusanelli’s case). Crazier still, Bates said that Klein’s assaults weren’t as bad as others because his objective was not to injure the police but instead to occupy the tunnel, the use of violence for political end.

The government’s contention that Klein engaged in “what can only be described as hand-to-hand combat” for “approximately thirty minutes” also overstates what occurred. See Gov’t’s Br. at 6. Klein consistently positioned himself face-to-face with multiple officers and also repeatedly pressed a stolen riot shield against their bodies and shields. His objective, as far as the Court can tell, however, appeared to be to advance, or at times maintain, the mob’s position in the tunnel, and not to inflict injury. He is not charged with injuring anyone and, unlike with other defendants, the government does not submit that Klein intended to injure officers. Compare Hr’g Tr. 57:12–18 (government conceding that the evidence does not establish Klein intended to injure anyone, only that “there was a disregard of care whether he would injure anyone or not” in his attempt to enter the Capitol), with Gov’t’s Opp’n to Def.’s Mot. to Reopen Detention Hearing & For Release on Conditions, ECF No. 30 (“Gov’t’s Opp’n to McCaughey’s Release”), United States v. McCaughey, III, 21-CR-040-1, at 11 (D.D.C. Apr. 7, 2021) (government emphasizing defendant’s “intent to injure” an officer who he had pinned against a door using a stolen riot shield as grounds for pretrial detention). And during the time period before Klein obtained the riot shield, he made no attempts to “battle” or “fight” the officers with his bare hands or other objects, such as the flagpole he retrieved. That does not mean that Klein could not have caused serious injury— particularly given the chaotic and cramped atmosphere inside the tunnel. But his actions are distinguishable from other detained defendants charged under § 111(b) who clearly sought to incapacitate and injure members of law enforcement by striking them with fists, batons, baseball bats, poles, or other dangerous weapons.

[snip]

Klein’s conduct was forceful, relentless, and defiant, but his confrontations with law enforcement were considerably less violent than many others that day, and the record does not establish that he intended to injure others. [my emphasis]

Klein is now the co-defendant of McCaughey, Judd, and Quaglin, charged in more assaults than McCaughey and Judd, which might make his own prior comparison with them backfire. More importantly, Klein’s inclusion in this larger indictment makes it clear how his actions cannot be viewed — as Bates did — as isolation actions, but were instead an integral part of some of the worst clashes of the day.

I have no idea whether DOJ will use this superseding indictment to move to get Klein’s release revoked. But he’s on the edge anyway: since his release, he has had several release violations for things like drinking enough wine at dinner with his mom that he decided to just stay over the night in violation of curfew. Thus far, John Bates hasn’t deemed Klein’s disrespect for the authority of the Court to be worth detaining him over. Trevor McFadden, under whom Klein’s case will be moved, has similarly been reluctant to revoke bail (though the most notable January 6 defendant where he did revoke bail, Brandon Fellows, is only charged with obstruction and may have mental health issues contributing to his refusal to follow release conditions). But he has far less patience with defendants who openly disdain the Court’s authority, as Klein has.

Last week, I noted that the government had made a record that they are entitled to invoke a terrorist enhancement for Scott Fairlamb at sentencing (his sentencing has been bumped to November to give the probation office time to finish the presentencing memo).

Like Fairlamb, all these defendants are also charged with obstruction. If proven at trial, that would mean a jury found there was an intent behind their serial, extended, coordinated assaults: to occupy the Capitol (as even Judge Bates described it) and in so doing to halt the vote count. These men are accused of violence in the service of preventing the peaceful transfer of power. And as such, I would be shocked if on this most spectacular of assault trials, DOJ didn’t also go after a terrorism enhancement.

In his testimony before the January 6 Commission, Jamie Raskin asked Hodges why he referred to terrorism or terrorists 15 times. Hodges read the legal definition of domestic terrorism:

Activities that involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any state, and, b, appear to be intended to intimidate or coerce a civilian population, or, to influence the policy of a government by intimidation or coercion.

If this omnibus case goes to trial it will demonstrate how all these assaults worked in concert to sustain an assault on our democracy for thirty-eight minutes. Officer Hodges may have his vindication at labeling these men terrorists.

The Grand Jury Secrets Hiding the Proud Boys’ East Door Activities

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By my very quick review, there have just been a handful of January 6 defendants charged individually via indictment, without first being charged by complaint.

Lewis Cantwell was arrested in February for civil disorder and obstruction, but whose actions on January 6 are not laid out in any public court documents.

Richard Harris was arrested via indictment in March for resisting arrest and obstruction. A motion supporting detention revealed that Harris persuaded cops to back down at one of the entrances and picked up a phone and purported to threaten Nancy Pelosi; he had assaulted a journalist at a protest in December in Oregon and — though this is contested — lived out of his car after that time.

Daniel Rodriguez was arrested via indictment in March for tasing Michael Fanone, among other things. A HuffPo article, which in turn relied on the work of various volunteer Sedition Hunters, had already provided ample introduction on Rodriguez.

The Klein brothers — Matthew and Jonathanpeter — probably count as one unit. They were charged via conspiracy indictment in March. Their drawn out detention fight showed one or both have ties to the Proud Boys, they followed Dominic Pezzola in the Senate side door, and then later successfully breached the North Door.

Other than that, people have been initially charged via indictment in group or conspiracy indictments: Verden Nalley got indicted along with William Calhoun a month after Calhoun was first charged. Albuquerque Cosper Head and Kyle Young were indicted for assault along with Thomas Sibick, who had already been charged. Taylor Johnatakis and Isaac Sturgeon were indicted on assault charges with Craig Bingert, who had already been charged. A now sprawling assault indictment including Jack Whitton, Clayton Mullins, and Michael Lopatic started with complaints against Jeffrey Sabol and Peter Stager. Another sprawling assault indictment including Tristan Stevens, David Judd, Christopher Quaglin, Robert Morss, and Geoffrey Sills built off a Patrick McCaughey complaint.

When some of the militia members got added to one or another indictment — Matthew Greene to one of the Proud Boys indictment, and several Oath Keepers to that omnibus indictment — they were indicted without a complaint first.

Which is to say, in this investigation, it has been very rare for an individual to be initially charged via indictment.

That’s why it’s notable that the government arrested Ricky Willden yesterday, a Proud Boy from Northern California, on assault and civil disorder charges via an indictment obtained a week earlier. The government issued a press release that describes that Willden was on the East side cheering as a bunch of Marines and one co-traveller opened the door, then sprayed some stuff at cops guarding the door.

The Proud Boys is a group self-described as a “pro-Western fraternal organization for men who refuse to apologize for creating the modern world; aka Western Chauvinists.” In publicly available videos recorded on Jan. 6, Willden can be seen in a crowd near the east door of the Capitol at 2:24 p.m. (according to time stamps in one of the videos) wearing a dark jacket, beanie cap and gloves, and cheering as the doors to the Capitol opened. At 2:35 p.m., he can be seen raising his hand and spraying an unknown substance from a green can toward police officers who were standing guard at the east door.

But because the government arrested Willden via indictment, they don’t have to release a public explanation of their probable cause to arrest him. Indeed, the press release pointedly cites “publicly available videos” to back the only allegation it makes.

One reason to charge someone on indictment rather than complaint is to hide the identity of witnesses who have testified. I find that particularly interesting, in part, because there were several people who posed in Joe Biggs’ picture on the East side, but thus far, just Paul Rae and Arthur Jackman have been identified from the picture (though Biggs surely knows who the others are). While the government has ostentatiously rolled out one after another Oath Keeper cooperator — first Jon Schaffer, then Graydon Young, and yesterday Mark Grods — aside from an unindicted co-conspirator identified in some of the Proud Boy indictments (UCC-1), whose identity those charged also know, the government has hidden the cooperators it has surely recruited from the notoriously back-stabbing group.  The hybrid approach the government has used — charging five overlapping conspiracies but also charging a bunch of Proud Boys who worked in concert with others individually — has (surely by design) made it harder for both participants and observers to understand what the government has in hand. There have been a few inconclusive hints that one or another person has flipped (or that Judge Tim Kelly, who has presided over most of the Proud Boys cases, had a sealed hearing that might reflect a plea deal), but nothing concrete.

For weeks it has been clear that unpacking how it happened that two militias and a bunch of Marines converged on the East Door as if all had advance warning would be one key to demonstrating the larger conspiracy behind the January 6 insurrection.

But just as DOJ has rolled out a new player in those events, they’ve moved everything to a grand jury to hide its secrets.