The January 6 Prosecutions Hit a Speed Bump

Two weeks ago, I wrote of the Department of Justice’s overreach respecting some of the hundreds of January 6 defendants. On Friday the D.C. Circuit clipped the department’s wings. I expect more such losses as time goes on and the Department must actually present evidence in contested trials.

The ploy of keeping in D.C. jails without bail some of the protestors who engaged in no specific violent acts at the Capitol until their cases can be heard was very obviously designed to compel  them to plea bargain so they could return home to their families and jobs, and the three-judge panel wasn’t buying it. If you think that there is a partisan tinge to their decision, you’d be wrong,  Judge  Robert Wilkins was confirmed under Barack Obama;  Judge Judith Rogers under Bill Clinton, and Judge George Katsas under Donald Trump. It was bipartisan.

The case made it to the Circuit Court upon appeal from a detention order by Judge Royce Lamberth (a senior judge first appointed to the bench by then-president Ronald Reagan). I mention the judicial appointment history of these judges as an antidote to the all-too-common implications that judges are always using the law to cover their personal political beliefs. Sometimes it appears they do. Other times -- like this one -- they are honestly applying the Constitution and law to the facts.

And they do so here in what was clearly the Department of Justice’s political effort to paint with a broad brush anyone who supported Trump on January 6 and to place unreasonable and unlawful burdens on those protestors in order to bolster overcharged crimes.

On March 14, I wrote:

Defense counsel in some cases asked, as is their right, for speedy trials. The government seems to be over its skis now, having heralded its charges against over 300 people, people as to whom the evidence of wrongdoing seems disputable as the government seeks to portray a grand conspiracy when, at best, it has only random acts -- mostly misdemeanors by dozens of people. Claiming they need time to proceed because they are investigating some vast conspiracy seems a convenient prosecutorial trick to keep people jailed for a long time in order to compel plea agreements from people who are employed, have stable family and community relations, and no criminal history.  

The unblinkered Circuit Court panel seems to have seen clearly through this maneuver. Two of the judges, Wilkins and Rogers, ordered the case returned to Lamberth to apply what it said was the appropriate standard for denying bail. In the majority opinion, Judge Wilkins distinguished between what constituted dangerous behavior and what did not:

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.”

Judge Katsas wrote a partial dissent on how to proceed (he would have reversed and remanded the case, effectively securing the defendants’ speedier release from jail). After he expressed agreement with the majority opinion, he presented a clear description of the claimed offenses and the applicable law:

How the Case Made it to the Court of Appeals

These appeals present the question whether Eric Munchel and his mother, Lisa Eisenhart, may be detained pending trial for their participation in the riot at the United States Capitol on January 6, 2021. The answer to that question does not turn on any generalized, backward-looking assessment of the rioters or the riot, as the district court erroneously suggested. Instead, it turns on a specific, forward- looking assessment of whether Munchel and Eisenhart as individuals currently pose an unmitigable threat to public safety. My colleagues and I agree on this critical point about the governing legal standard in these appeals. 

The Applicable Law

The Bail Reform Act permits pretrial detention in only “carefully defined circumstances.” United States v. Simpkins, 826 F.2d 94, 95–96 (D.C. Cir. 1987). To support detention, a court must find that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e)(1). In assessing public safety and flight risk, courts must consider four factors: (1) “the nature and circumstances of the offense charged,” (2) “the weight of the evidence against the person,” (3) “the history and characteristics of the person,” and (4) “the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.” Id. § 3142(g). For the public-safety determination, the government must prove all relevant facts “by clear and convincing evidence,” id. § 3142(f)(2), and we review all relevant findings for clear error, United States v. Smith, 79 F.3d 1208, 1209 (D.C. Cir. 1996).

Other Measures Besides Jail Were Available

In this case, a magistrate judge concluded that neither Munchel nor Eisenhart is a flight risk and that neither would pose a safety risk if subjected to conditions including home detention, GPS monitoring, a ban on possessing firearms, a ban on travel to Washington, D.C, and supervision by the U.S. Pretrial and Probation Services System. Munchel Mag. Tr. at 177, 181, 185–89; Eisenhart Mag. Tr. at 152, 163, 164–66. The district court agreed that Munchel and Eisenhart do not present a flight risk, but found that no combination of release conditions would reasonably ensure public safety. United States v. Munchel, No. 1:21-CR-118-RCL, 2021 WL 620236, at *1, *5, *7 (D.D.C. Feb. 17, 2021). [snip]But as the court itself acknowledged, “[t]he record contains no evidence indicating that, while inside the Capitol, Munchel or Eisenhart vandalized any property or physically harmed any person.” 

The Defendants’ Conduct on January 6

Munchel and Eisenhart did not organize the election protest or the ensuing march to the Capitol, hatched no advance plan to enter the Capitol, and acted in concert with no other protestors. Nor did they assault any police officers or remove any barricades in order to breach Capitol security. They decided to enter the Capitol only after others had already done so forcibly. By the time they made their way to the building, police were making no attempt to stop or even discourage protestors from entering. To go inside, Munchel and Eisenhart walked through an open door. While there, they attempted neither violence nor vandalism. They searched for no Members of Congress, and they harassed no police officers. They found plastic handcuffs by chance, but never threatened to use them. Munchel’s threat to “break” anyone who vandalized the Capitol was intended to prevent destruction and was addressed to no one in particular. [snip] Munchel and Eisenhart voluntarily left the building -- while many other protestors remained and before the police began to restore order. Their misconduct was serious, but it hardly threatened to topple the Republic. Nor, for that matter, did it reveal an unmitigable propensity for future violence. 

Other Relevant Factors Respecting Bail

Munchel maintained employment until his arrest, has no history of violence, has no prior felony convictions, and is not a member of any anti-government or militia group. [snip] Both appellants voluntarily surrendered to the FBI. Munchel took affirmative steps to preserve the evidence in his cellphone and arranged to provide it to the government. Id. at 176. Before her arrest warrant had even issued, Eisenhart established daily contact with the FBI so that she could turn herself in as soon as it did. Eisenhart Mag. Tr. at 152. The third factor thus cuts strongly in favor of release. 

In evaluating the “nature and seriousness” of any danger, the district court highlighted statements that Munchel and Eisenhart made to the media on January 7. Munchel said that “[t]he point of getting inside the building is to show them that we can, and we will,” Munchel, 2021 WL 620236, at *6, while Eisenhart, invoking the American Revolution, said that she would “rather die and would rather fight” than “live under oppression,” id. at *8. To the district court, these statements indicated that the defendants pose “a clear danger to our republic” and that Eisenhart is a “would-be martyr.” Id. at *6, *8. But the defendants’ actual conduct belied their rhetorical bravado. During the chaos of the Capitol riot, Munchel and Eisenhart had ample opportunity to fight, yet neither of them did. Munchel lawfully possessed several firearms in his home, but he took none into the Capitol. Munchel Mag. Tr. at 179, 

182. Indeed, before entering the Capitol, Munchel and Eisenhart stashed a knife inside a backpack that they left outside, precisely for fear of ending up in “federal prison.” See Munchel, 2021 WL 620236, at *2. 

Moreover, even if their comments indicate some willingness to engage in future protests or disruption, the Bail Reform Act permits detention only to prevent an “identified and articulable threat to an individual or the community.” United States v. Salerno, 481 U.S. 739, 751 (1987). Here, the district court identified one such threat -- that Munchel and Eisenhart would attempt “to stop or delay the peaceful transfer of power.” Munchel, 2021 WL 620236, at *6, *8. But the transition has come and gone, and that threat has long passed. In the district court, the government warned of an upcoming protest scheduled for March 4. But that protest never materialized, and the government produced no evidence that Munchel and Eisenhart had been involved in its planning before their arrest. The government’s gesturing towards the possibility of their joining future protests falls well short of any “identified and articulable threat.” Salerno, 481 U.S. at 751. [snip]

Munchel and Eisenhart chose to trespass -- not to engage in violence, much less fight to the death. Afterwards, both voluntarily surrendered to the FBI, as the district court recognized in concluding that neither posed a flight risk. See Munchel, 2021 WL 620236, at *5, *7. Munchel preserved and voluntarily turned over his cellphone video. Munchel Mag. Tr. at 176. Likewise, even after he was identified as a suspect, Munchel made no attempt to hide or remove the firearms that he lawfully possessed at his home. Id. at 181–82. As for the defendants’ attitudes towards law enforcement, the video shows that police did not seek to discourage their entry into the Capitol through an open door, Munchel iPhone Video at 38:48; Munchel and Eisenhart made no attempt to harass officers while inside the Capitol; and, as they were preparing to exit, Munchel encountered an officer and said “Sorry, guys, I still love you,” id. at 49:26. Finally, contrary to the district court’s characterization of Eisenhart as a “would-be martyr,” she specifically declined to bring a knife into the Capitol because of her expressed concerns with “federal prison.” See Munchel, 2021 WL 620236, at *2. The defendants’ other personal characteristics -- which the district court acknowledged to weigh in favor of release -- further indicate that they are likely to comply with release conditions. 

Of course, we review dangerousness findings only for clear error, Smith, 79 F.3d at 1209, which requires affirmance if a district court’s “account of the evidence is plausible in light of the record viewed in its entirety,” Anderson v. City of Bessemer City, 470 U.S. 564, 573–74 (1985). But while the standard of review here is favorable to the government, both substantive law and the standard of proof favor the defendants. The Bail Reform Act requires a showing that “no condition or combination of conditions” would even “reasonably assure” the safety of individuals or the community. 18 U.S.C. § 3142(e)(1). And it requires this showing to be made by “clear and convincing evidence,” id. § 3142(f)(2) --  a heightened standard of proof under which the fact finder must “give the benefit of the doubt to the defendant,” United States v. Montague, 40 F.3d 1251, 1255 (D.C. Cir. 1994); see Addington v. Texas, 441 U.S. 418, 424 (1979). Putting it all together, because the record strongly suggests that Munchel and Eisenhart would present no safety risk if subjected to strict release conditions, the district court clearly erred in finding that the government had proved its case by clear and convincing evidence.

Why Pretrial Detention Must be Limited

‘In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.’ Salerno, 481 U.S. at 755. Because the district court clearly erred here, I would reverse its detention order and remand for the setting of appropriate release conditions.”

As BuzzFeed reports, the Munchel ruling is already impacting existing cases of January 6 protestors being held without bail. Two Oath Keepers members, Connie Meggs and Donovan Crowl, were granted bond by Judge Amit Mehta (by the way, an Obama appointee) who relied on the Munchel decision.

The description of Munchel and Eisenhart’s conduct at the Capitol, a description based on evidence, not news reports, is more in accord with my view of what almost all the thousands of  protesters exhibited -- no armed violence to persons or destruction of property; at best misdemeanor trespass which given the encouragement to do so by a number of Capitol Police even seems a dubious charge. This description is  contrary to the perfervid press coverage and the bias it engendered upon which it appears that the Department of Justice was counting in the  subsequent criminal court proceedings. The florid accounts in the press were in my view designed to tar any Trump supporters and justify surrounding the Capitol with National Guard troops, fences, and barbed wire. When actually facing  evidentiary challenges, those accounts failed here.  

“Last time we were here 30 days ago, I was convinced that it was a plan to execute an incursion on the Capitol building,” the judge told Caldwell’s attorney. “You’ve raised some evidence that, I think, rebuts that notion.” 

The judge has since released other defendants, noting there’s no evidence they assaulted anyone at the Capitol or, in some cases, don’t appear to be as involved in the planning before Jan. 6. 

But Mehta on Friday ordered Meggs to remain locked up, calling him a danger to the community. The judge said his communications in the weeks leading up to the attack show he was planning for violence in the streets of Washington even if none specifically mention a plot to storm the Capitol. 

Prosecutors have also apparently been unable to get on the same page about what to say to the press. 

A judge recently scolded the Justice Department over a “60 Minutes” interview during which the prosecutor who was leading the investigation suggested some of the rioters could face sedition charges. Former acting District of Columbia U.S. Attorney Michael Sherwin’s interview appeared to violate Justice Department rules and Sherwin is now under internal investigation, a prosecutor told the judge.

It’s no secret that Justice Department counsel hoping for career advancement have in recent years relied on manipulated news to influence judges and jurors. It’s long past time for adult supervision of excessive criminal charges and overly aggressive advocacy. As the hoopla about January 6 fades, I expect more losses for the department.

If you experience technical problems, please write to