WASHINGTON – For many accused of attempting to obstruct the certification of the U.S. presidential election on Jan. 6, arrest was a reality check. Now they are getting another.
As defendants charged in the Capitol siege have been coming through court, some have been shifting blame onto former president Donald Trump, downplaying their actions or expressing remorse. But federal judges – particularly those who work a few blocks from the Capitol – aren’t buying it.
One judge called a defendant’s claim of civil disobedience “detached from reality.” Another verbally smacked down an attorney who tried to use the QAnon conspiracy theory to explain his client shouting “kill them all.” Other judges have been giving defendants civics lessons on how democracy works.
U.S. District Judge Beryl Howell, the chief federal jurist for the District of Columbia, responded incredulously to one defense attorney who said his client believed Trump requested his unlawful conduct. She said if a president could sanction overturning an election he would be no different from “a king or a dictator” and “that is not how we operate here.”
When the attorney added that the man, the accused leader of a Proud Boys group, had been “chastened rather than emboldened” by the federal charges and his anti-government “fever has broken,” Howell clapped back.
“Essentially, that’s what your argument is, saying, ‘Whoops,’ now?” Howell asked. “Has he expressed any remorse or rejection of his membership in the Proud Boys, a gang of nationalist individuals? Does he reject the fantasy the election was stolen? Does he regret the positions that animated the mob on Jan. 6? Is there anything on the record about any of those things?”
“Whoops” is, essentially, what many of the accused are now saying.
Through attorneys, at least six of the relatively small number of defendants arguing for release from jail pending trial have claimed that their disillusionment with Trump should be considered as a factor. Some, like the horned “QAnon Shaman” Jacob Chansley, have cast themselves as both victims and perpetrators.
“Please be patient with me and other peaceful people who, like me, are having a very difficult time piecing together all that happened to us, around us, and by us,” he said in a public statement. “We are good people who care deeply about our country.”
Chansley, after failing to get a pardon from the president, offered to testify against him in the impeachment trial.
Some tie their delusions to involvement with militant right-wing groups and the consumption of far-right news, both of which amplified baseless claims that the election was illegitimate and that Trump would retake power by force.
Jessica Watkins, a 38-year-old member of the Oath Keepers extremist group from Woodstock, Ohio, intended “not … to overthrow the government, but to support what she believed to be the lawful government,” public defender Michelle Peterson of D.C. argued in court filings. “She fell prey to the false and inflammatory claims of the former president, his supporters, and the right wing media.”
Friends and family of Watkins echoed that claim in court filings. One described her as “brainwashed by those deeply entrenched in conspiratorial beliefs.” Watkins’s fiance, with whom she co-owns a bar, wrote that his girlfriend “has no desire to resume militia activities” and “wishes to ignore politics and focus on serving cocktails and cooking food.”
Watkins is accused of involvement in a conspiracy among Oath Keepers and their associates to storm the Capitol building; prosecutors point to comments she made about fighting and dying as evidence that they planned to capture and possibly harm lawmakers.
Dominic Pezzola, a New Yorker, says he got involved with the Proud Boys last fall and had “honorable intentions” when he used a police riot shield to break a window at the Capitol, his attorney wrote last week; he believed he was “protecting his country.” Pezzola “now realizes he was duped into these mistaken beliefs” and “is consumed with guilt.”
Prosecutors say Pezzola was among the first people to charge through barricades onto Capitol grounds, reach the building’s walls and flood its west plaza. Once there, he acknowledges that he confronted police and grabbed a riot shield, becoming the first to breach a window that rioters could enter through.
Judges have yet to rule on Pezzola and Watkins’s bids for release. But Howell rejected an argument by attorneys for accused Kansas City Proud Boy William Chrestman that his conduct at the Capitol was authorized by the president.
“President Trump … for four years bragged that if he murdered someone on Fifth Avenue, his followers would still follow him,” she said, and added, “So if President Trump instructed members of the Proud Boys gang to murder somebody, and they did, that would be a legal excuse and immunize them from any liability for a criminal act?”
Prosecutors have not asked to detain the bulk of about 250 rioters charged federally, many of whom are accused of only misdemeanor trespassing, have no criminal record, and have shown work, family and community ties or public or military service. Judges have also pushed back at jailing individuals whose crimes do not involve violence. Many have been spared jail unless they have been alleged to be “one of the individuals who banged down doors, sprayed pepper spray or bear spray at law enforcement officers, injured law enforcement officers, poked out eyes of police in the building,” as one judge recited in releasing a commissioner of a county in New Mexico pending trial.
But in detaining about 54 individuals on grounds that they pose a risk of flight, danger to the community or are charged with certain violent offenses, and weighing requests to modify release conditions, courts have given urgent civics lessons, educating defendants and the public on the real-life functioning of American democracy, as opposed to the fever dreams of partisan manipulators.
“American democracy didn’t always exist. It started with a Declaration of Independence and a Revolutionary War, followed by the Articles of Confederation. That original founding document contained one branch of government – a Congress. It proved insufficient,” U.S. Magistrate Philip R. Lammens began a detention order for alleged Florida state leader Oath Keeper Kelly Meggs.
After a rebellion, founders agreed on a stronger government with three branches, an electoral college, and certification of winners by both houses of Congress and the vice president, Lammens wrote.
What happened on Jan. 6. “wasn’t just one on an entire branch of our government (including a member of the executive branch), but it was an attack on the very foundation of our democracy.”
Meggs attorney David Wilson declined to comment.
Charles Peruto argued that his client, Gina Bisignano, was engaging in “free speech” when she shouted encouragement to rioters through a bullhorn on Jan. 6.
“She certainly drank the Trump Kool-Aid and was a willing participant at this protest and other protests,” he said. But “she was in fact horrified by the violence, didn’t think there would be actual violence; she was swept up in the moment and obviously made a serious bad judgment call here.”
U.S. District Judge Carl Nichols was not moved by that argument.
“She was an active person in a riot that aimed to prevent by violent means a normally quiet but critical step in the peaceful transition of power,” he said.
The seven charges against her, the judge added, don’t fully capture the seriousness of her conduct: “Her actions fly in the face of common decency and fly in the face of democracy and the rule of law.”
The judge however said he was not persuaded that jail was necessary to prevent her from engaging in such conduct in the future; he ordered her released on “very strict conditions,” with no use of social media and limited ability to leave her home.
Howell as chief judge has reviewed a particularly large number of Capitol cases, including appeals of detention rulings by lower courts nationwide, as well as her own assigned defendants.
A former longtime top Senate Judiciary Committee staffer whose courthouse office looks onto friends and former colleagues at the Capitol, three blocks away, Howell has noted how Jan. 6 has turned parts of the capital city into a militarized fortress surrounded by razor-topped fencing and road blocks, off limits both to city’s residents and visitors.
In the QAnon case, Howell rejected an attorney’s explanation that when his client shouted “kill them all” in the Capitol – referring to lawmakers – he didn’t mean he would do so personally, but that he believed lawmakers would be executed by proper authorities in a Judgment Day apocalypse.
“QAnon believers will confront facts and reality in court,” she said. “What happened January 6 is no fantasy for people inside the Capitol, or for people in the country. The defendant is entitled to his beliefs. He can believe the QAnon theory. He can believe the earth is flat. He can believe what he wants, but he is not entitled to break the law.”
One of Howell’s predecessors as chief judge, U.S. District Judge Royce C. Lamberth, similarly told attorneys for a pair of defendants that characterizing their behavior “as mere trespassing or civil disobedience is both unpersuasive and detached from reality.”
Lamberth, a former Army captain and prosecutor appointed to the federal bench in 1987, ordered detained Lisa Eisenhart and Eric Munchel, a mother and son who prosecutors say allegedly entered the Capitol in tactical gear and armed with a stun gun, searching for “traitors.”
Defense attorneys for Munchel and Eisenhart argued that the president “invited” all Americans into the Capitol. Lamberth rejected that argument.
“By word and deed, [Eisenhart and Munchel] supported the violent overthrow of the United States government,” and pose “a clear danger to our republic,” Lamberth wrote. “Indeed, few offenses are more threatening to our way of life.”