Prosecutors in the cases against the January 6 demonstrators are starting to run into some judicial pushback: Questions about exculpatory evidence in their possession not turned over as the law demands, lower courts assessing the defendant as more dangerous than the evidence warranted, and most significantly, whether the prosecution is overcharging defendants with the federal crime of obstruction. 

Most of the defendants are charged with knowingly entering or remaining in a restricted area -- a fancy way of saying trespassing. Defendants are entitled to see before pleading to the charges any materially exculpatory evidence in the government’s possession. Defense counsel have complained that the government has not been meeting this obligation, and the prosecution has been responding that it is unable to quickly assess all the evidence it has to meet this burden. As to those charged with trespassing, some are claiming they were invited in and, therefore, could not be guilty of the charges. The prosecution got one extension and the question is whether they should get another, a question complicated by the defendants’ right to a speedy trial. Sixteen of the defendants facing the most serious charges will not have their cases heard until next January. 

This week, the Department of Justice seems to have conceded the very point of the inapplicability of some trespass charges. 

In its pleading, it states: ”we possess some information that the defense may view as supportive of arguments that law enforcement authorized defendants (including Defendant) to enter the restricted grounds'. e.g., images of officers hugging or fist-bumping rioters, posing for photos with rioters, and moving bike racks, we are not in a  position to state whether we have identified all such information.”

To my knowledge, two appellate courts have now held that the trial courts have erred in assessing the appellant’s dangerousness. The first such case was decided in March. 

In a 2–1 decision, the US Court of Appeals for the DC Circuit ordered a lower court judge to reconsider his decision to keep Eric Munchel and his mother, Lisa Eisenhart, in jail while their cases go forward. US District Judge Royce Lamberth had ruled in February that Munchel -- who was photographed inside the Capitol wearing tactical gear and holding plastic zip-tie handcuffs -- and Eisenhart presented “a clear danger to our republic” and that there were no release conditions that would “reasonably ensure the safety of the community.” But DC Circuit Judge Robert Wilkins wrote Friday that Lamberth’s 17-page opinion failed to articulate how the two posed a danger when they hadn’t actually been charged with committing specific violent acts at the Capitol on Jan. 6. Lamberth wrote that the allegations against Munchel showed that he was “willing to use force to promote his political ends,” but the appeals court found that the judge didn’t explain how he reached that conclusion when there was no evidence Munchel hurt anyone or broke anything.

“In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way,” Wilkins, joined by Judge Judith Rogers, wrote.

Munchel and Eisenhart will remain in jail as the case goes back to Lamberth for another round of arguments. [Judge Lamberth released them pending trial]

Friday’s opinion marks the first time the appeals court has weighed in with a specific framework for how lower court judges should think about pretrial detention in the Capitol riot cases. The decision sets precedent that is now binding on all the district court judges in DC and moves the bar higher for the government to successfully argue for pretrial detention for other defendants who, like Munchel and Eisenhart, aren’t charged with assaulting police, property destruction, or conspiracy and have minimal or no previous criminal record.

This week, another appellate court came to a like decision. 

A three-judge appeals court panel has ordered the release of West Virginia sandwich shop owner George Tanios pending trial in the Jan. 6 chemical-spray assault on three police officers including Brian D. Sicknick, who died the following day after suffering two strokes.

A lower court “clearly erred in its individualized assessment of appellant’s dangerousness,” the judges from the U.S. Circuit Court of Appeals for the D.C. Circuit said in an order filed 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,” the order said.

The most serious hurdle to date was also raised this week when U.S. District Judge Randolph D. Moss questioned whether it was appropriate to pursue obstruction charges against 235 defendants. The government’s claim is that the actions of these defendants constituted a violation of the federal “obstruction” statutes because their conduct disrupted the congressional certification of the presidential election. Judge Moss is no babe in the wood, he headed the Department of Justice’s Office of Legal Counsel and now chairs the Federal Judiciary’s Committee on Criminal Law. (In my view the federal crimes of “conspiracy” and “obstruction” are overly broad and misused by prosecutors. It is what was used to destroy the Arthur Anderson accounting firm and it was no compensation that the Supreme Court unanimously held that the firm’s conduct did not constitute “obstruction.” It had recommended destruction of records in the ordinary course of events, and if that made the government’s case more difficult it was not done for that purpose. Arthur Andersen LLP v. United States, 543 U.S. 1042 (2005).)

In any event, Judge Moss questioned whether the charges aren’t unconstitutionally vague and asked the parties to brief how the Justice Department distinguished “felony conduct under the statute, punishable by up to 20 years in prison, from misdemeanor offenses, such as shouting to interrupt a congressional hearing.”

“‘Unless we can tell the public where that line is, there’s a problem.” You bet there is. Criminal statutes should be clear and consistent to provide guidance to all, and it’s hard to see how they can be when prosecutors have charged people who aren't accused of violence or destruction. Is sitting in the vice-president’s chair really obstruction of Congress, to take one example?

This hurdle will certainly slow down the impetus to plead guilty -- it’s one thing to face a misdemeanor charge and quite another to risk a 20-year sentence. If the prosecution believes this conduct had been seditious or an insurrection, they would have charged it. Obviously, they lack the evidence to sustain such serious claims. Will they now re-charge for lesser offenses? We’ll see. I think Judge Moss might have, as I did, recalled the recent Kavanaugh hearings and their disruption when he asked the government whether it could cite any other cases in which the government charged comparable conduct. The department could not. 

Image: Tyler Merbler

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