Judge suggests feds are too lenient toward Jan. 6 defendants

·9 min read

A federal judge suggested Monday that federal prosecutors were being too lenient in their handling of cases stemming from the storming of the U.S. Capitol as lawmakers were convening on Jan. 6 to certify Joe Biden’s victory in the presidential race.

Beryl Howell, the chief judge of the federal court in Washington deluged with more than 550 prosecutions from the Capitol riot, raised questions about why some defendants were being permitted to resolve their criminal cases by pleading guilty to a misdemeanor and why the amount of money prosecutors are seeking to recover through those plea deals was based on a relatively paltry estimate of about $1.5 million in damages caused by the rioters.

Howell aired her doubts during what was expected to be a routine morning hearing to take the guilty plea of a Capitol riot defendant, Glenn Croy of Colorado Springs, Colo. Croy was arrested in February on charges that he and another man, Terry Lindsey, illegally entered the Capitol building on Jan. 6.

Under a deal with prosecutors, Croy was seeking to plead guilty to a single misdemeanor charge of parading or picketing in the Capitol. That carries a maximum sentence of six months in jail and a fine of up to $5,000.

However, Howell’s comments at Croy’s hearing signaled she had broader concerns about prosecutors’ approach than just the way they handled Croy’s fairly typical case.

Croy initially agreed with Howell that his actions on Jan. 6 were taken with what the judge called “the purpose of stopping Congress from certifying the electoral vote from the 2020 presidential election.”

But a short time later his defense attorney, Kira Anne West, added that there was no agreement with prosecutors that was Croy’s intent that day. In fact, West said, his client said he had “no intention of stopping any vote” and didn’t actually know that the Electoral College votes were scheduled to be tallied at the time the historic building was stormed.

Those claims didn’t appear to sit well with Howell.

“This is the puzzle for this petty offense charge. … It’s to parading, demonstrating or picketing. … That is typically for an end,” the judge said. “Demonstrating is typically about something. It’s parading about something.”

Howell then grilled the prosecutor handling the case, Clayton O’Connor, about why prosecutors hadn’t insisted that Croy admit as part of the plea that he was trying to block the electoral vote.

“Why isn’t that in the statement of offense?” the judge asked.

In response, O’Connor laid bare aspects of prosecutors’ decision-making that have rarely been discussed publicly: why some defendants who went into the Capitol but aren’t accused of violence against others or damaging property are facing a felony obstruction-of-Congress charge that can carry a maximum of 20 years in prison, while others who appear to have acted similarly that day have escaped with misdemeanors.

“Largely, because of the elements which go to the obstruction charge which many of Mr. Croy’s co-rioters have been charged with,” O’Connor explained. “In the review of the investigation, that fact was not revealed to a degree that the government could prove it beyond a reasonable doubt with regard to Mr. Troy.”

The handling of other Jan. 6 cases by the U.S. Attorney’s Office in Washington and its superiors at the Justice Department has pointed to such a distinction. Cases where defendants posted on social media about trying to stop the vote have generally produced more serious charges, while those lacking such evidence seem to have been treated more leniently, even if the acts allegedly committed were similar.

Yet, Howell didn’t seem to be buying it, and repeatedly suggested it could be inferred that those who entered the Capitol were not just there on a lark.

O’Connor, the prosecutor, concurred.

“Contextually, we agree with you that’s apparent,” he said, before insisting that the government needed more evidence of intent in each case than just entry into the building.

Howell also seemed to lament the fact that those pleading guilty to petty misdemeanors carrying the maximum six-month jail term couldn’t be put under supervised release by the court if they also received jail time. Such an option is available and commonly used by judges in felony cases.

“Under petty offenses, there are only two options the court can do: probation or a term of imprisonment,” she said.

Howell also said she was puzzled why prosecutors are using a sum of about $1.5 million to calculate restitution in the cases, while Congress agreed last month to appropriate $521 million to the National Guard for costs incurred in providing security for the Capitol for four months after the Jan. 6 assault. Biden signed the bill on July 30.

“Would you explain the U.S. Attorney’s Office’s reason to limit restitution to a little less than $1.5 million in repairs to the building itself, when the total cost of this riot to the American taxpayers is half a billion?” the judge asked.

“I’m happy to get you that answer,” O’Connor replied.

“Thank you. I’d appreciate that answer,” Howell said, adding that the meager restitution amount being sought was ”a little bit surprising” given the government’s usual approach to such issues.

“I’m accustomed to the government being fairly aggressive in criminal cases involving fraud and other types of cases,” said the judge, a former Senate Judiciary Committee counsel who is an appointee of President Barack Obama.

At previous hearings in other cases, Howell has suggested that charges against some Jan. 6 defendants might understate the gravity of their actions because the chaos they contributed diverted police from more threatening members of the crowd. Howell has also questioned other decisions by prosecutors in the riot-related cases, such as the government’s failure to challenge an appeals court ruling that made it harder to detain non-violent defendants.

Despite the misgivings she aired on Monday, Howell ultimately accepted Croy’s plea and set sentencing for Oct. 15. She ordered prosecutors to file details about the restitution calculation, which the government agreed to as $500 in his case, by the time it proposes a sentence.

A spokesperson for the U.S. Attorney’s Office declined to discuss Howell’s latest comments and indicated that any response from prosecutors would come in court proceedings or filings.

Prosecutors have indicated that the $1.5 million estimate comes from information provided by the Architect of the Capitol. That office has cited higher figures in congressional testimony but appears to have swept in other categories of spending related to the riot. An estimate given to lawmakers in February was for spending $30 million through the end of March for repairs and temporary fencing.

In other developments Monday related to the Jan. 6 riot:

— A federal appeals court for the first time ordered the release of a Capitol riot defendant whom a U.S. District Court judge had ordered detained pending trial. A three-judge panel of the D.C. Circuit Court of Appeals unanimously ruled that West Virginia resident George Tanios, who is charged with numerous felonies including conspiracy to assault police by means of a chemical irritant, should be allowed to await trial on home detention with electronic monitoring.

“The district court clearly erred in its individualized assessment of appellant’s dangerousness,” the D.C. Circuit order said in a two-page order issued Monday night. “The record reflects that Tanios has no past felony convictions, no ties to any extremist organizations, and no post-January 6 criminal behavior that would otherwise show him to pose a danger to the community within the meaning of the Bail Reform Act.”

Tanios is accused of discussing plans to deploy the irritant with his friend and co-defendant, Julian Khater, and giving him the spray that day. Khater was caught on video doing the spraying. Prosecutors say the stream hit Capitol Police Officer Brian Sicknick, who later died from a stroke. Authorities have not alleged any link between the spraying and Sickinck’s death a day or so later.

The release order came from Judge Karen LeCraft Henderson, an appointee of President George H.W. Bush; from Judge Judith Rogers, who was appointed by President Bill Clinton; and from Judge Justin Walker, an appointee of President Donald Trump. The order to hold Tanios pending trial was issued by Judge Thomas Hogan, who was appointed by President Ronald Reagan.

Prosecutors could ask the full bench of the D.C. Circuit to take up the issue. A spokesperson for the prosecution team did not immediately reply to a request for comment.

In March, another D.C. Circuit panel overturned the detention orders for a mother and son charged in the riot, Lisa Eisenhart and Eric Munchel. However, the appeals court did not mandate their release. Following that ruling, prosecutors elected to no longer seek pretrial detention for the pair.

— Prosecutors released a new indictment adding two more defendants, Florida resident David Moerschel and Georgia resident Brian Ulrich, to a conspiracy case against so-called Oath Keepers accused of involvement in a preplanned assault on the Capitol. The two new additions bring the number of people charged in that massive case to 18.

— A judge handling another conspiracy case — one focused on the so-called Proud Boys allegedly involved in the riot — rejected a defendant’s demand that prosecutors provide more details about specifics in the case. Judge Timothy Kelly said that prosecutors had already answered many of the questions advanced by lawyers for defendant Ethan Nordean, and that the other answers were apparent from “great detail” contained in the indictment in that case.

— Following an order from Kelly and a request from news organizations, prosecutors released video of Capitol riot defendant Douglas Jensen boasting on social media about his actions on Jan. 6.

“This is me touching the f---ing White House,” Jensen says in the video. “This is why we’re here … at the White House, just so you know.”

Shots in the middle of the 18-second video make clear that Jensen and the crowd around him were actually outside the Capitol, not at the White House.

Kelly ordered Jensen’s pretrial release on bond last month, subject to high-intensity supervision.

Kyle Cheney contributed to this report.

CORRECTION: An earlier version of this report misspelled Kira Anne West's name.

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