For many accused of trying to block Congress from confirming the winner of the presidential election on 6 January, an 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 QAnon – the sprawling set of false claims that have coalesced into an extremist ideology – to explain his client shouting “Kill them all!” Other judges have been giving defendants civics lessons on how democracy works.
US District Judge Beryl Howell, chief federal jurist for the District of Columbia, responded incredulously to one defence attorney who said his client believed Trump requested his unlawful conduct. She said if a president could authorise 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 that his anti-government “fever has broken,” Howell clapped back.
“Essentially, that’s what your argument is, saying, ‘Whoops,’ now?” Ms 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 January sixth? 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, such as the horn-wearing “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,” Mr Chansley said in a public statement. “We are good people who care deeply about our country.”
Mr Chansley, after failing to get a pardon from the president, offered to testify against him in Trump’s 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, 38, a 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.”
Ms Watkins echoed that claim Friday afternoon in court, saying she was “humbled” and “humiliated” after 6 January and was now “appalled … by my fellow Oath Keepers.” She said she has disbanded her own militia and wants to focus on her struggling bar: “I did it out of love for my country, but its time to let all of that go.”
US District Court judge Amit Mehta said it was “really hard reconciling” the Ms Watkins described by the defence with the one who, according to prosecutors, discussed fighting and dying to keep Trump in power. He said he was particularly disturbed by evidence that she and others had a “quick reaction force” waiting with weapons on 6 January.
“Why somebody who was there for a political rally would be talking to others about rapid incursion forces doesn’t make a whole lot of sense,” the judge said. “This isn’t someone who is simply expressing dissent” but “someone who is involved in the planning and organising of … an incursion of our national Capitol that was a real threat to the fabric of our democracy.”
Dominic Pezzola, a New Yorker, says he got fall with the Proud Boys – a far-right group with a history of violence – and had “honourable intentions” when he used a police riot shield to break a window at the Capitol, his attorney wrote last week, saying he believed he was “protecting his country.” Pezzola “now realizes he was duped into these mistaken beliefs” and “is consumed with guilt.”
Prosecutors say Mr Pezzola was among the first people to charge through barricades onto the Capitol grounds, reaching the building’s walls and flooding its west plaza. Once there, they said, he confronted police and grabbed a riot shield, becoming the first to breach a window through which rioters could enter.
A judge has yet to rule on Mr Pezzola’s bid for release. But Howell rejected an argument by attorneys for accused Kansas City Proud Boy William Chrestman that his conduct at the Capitol was authorised by the president.
Prosecutors obtained a fresh indictment Friday alleging Mr Chrestman led a group of four Kansas City Proud Boys who travelled to Washington and stayed together at a short-term rental property near Washington. The indictment said they coordinated with additional Proud Boys and others “known and unknown” in a wider conspiracy to forcibly enter the Capitol to obstruct Congress, wielding weapons, assaulting police and destroying property.
“President Trump … for four years bragged that if he murdered someone on Fifth Avenue, his followers would still follow him,” Howell said. “So if president Trump instructed members of the Proud Boys gang to murder somebody, and they did, that would be a legal excuse and immunise them from any liability for a criminal act?”
For the bulk of the more than 300 accused rioters charged federally, prosecutors have not sought detention. Many are accused only of misdemeanour 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, pose a danger to the community or are charged with certain violent offences, 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.
“American democracy didn’t always exist,” US magistrate Philip Lammens began a detention order for an alleged Florida Oath Keepers leader, Kelly Meggs. “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.”
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 6 January “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.”
Ms Meggs’ attorney David Wilson declined to comment.
US District Judge Carl Nichols agreed that Gina Bisignano, accused of inciting other rioters to violence, could be safely released on “strict conditions.” But he pushed back when defence attorney Charles Peruto argued that the Beverly Hills salon owner was engaging in “free speech,” got “swept up in the moment” and “drank the Trump kool-aid” when she shouted encouragement to rioters through a bullhorn on 6 January.
“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,” said Nichols, a Trump appointee and the newest member of the DC court. “Her actions fly in the face of common decency and fly in the face of democracy and the rule of law.”
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 6 January has turned parts of the capital city into a militarised fortress surrounded by razor-topped fencing and roadblocks, off-limits to city 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 did not mean he would do so personally, but that he believed lawmakers would be executed by proper authorities in a Judgement Day apocalypse.
“QAnon believers will confront facts and reality in court,” she said. “What happened January sixth 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 Lamberth, similarly told attorneys for a pair of defendants that characterising their behaviour “as mere trespassing or civil disobedience is both unpersuasive and detached from reality.”
Mr Lamberth, a former Army captain and prosecutor appointed to the federal bench in 1987, ordered detention for Lisa Eisenhart and Eric Munchel, a mother and son who prosecutors say entered the Capitol in tactical gear and armed with a stun gun, searching for “traitors.”
Defence attorneys for Mr Munchel and Ms Eisenhart argued that Trump “invited” all Americans into the Capitol. Mr 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,” Mr Lamberth wrote. “Indeed, few offences are more threatening to our way of life.”
