This week, federal prosecutors quietly revealed that they possess evidence that may sink their prosecutions of many of those who were present at the Capitol on January 6.
This under-the-radar admission was made in a filing in the case of United States v. Couy Griffin. Griffin – an elected county commissioner for Otero County, New Mexico, a former pastor, and the founder of “Cowboys for Trump” – is charged with entering a restricted area outside the U.S. Capitol on January 6, 2021.
On Jan. 6, Griffin and a videographer traveled to Washington, D.C. to protest the results of the 2020 Presidential Election. After attending the Stop the Steal rally at The Ellipse, Griffin headed toward the Capitol as the crowd formed around fencing which had been set up in anticipation of the presidential inauguration.
Griffin and his videographer made their way to the outside deck of the Capitol, where the Presidential Inauguration was set to occur in a few weeks. There Griffin borrowed a bullhorn and led a group of protesters in prayer. He remained on the deck for about an hour and a half before voluntarily leaving the Capitol grounds with his videographer.
Griffin thereafter posted a video to the Cowboys for Trump Facebook page in which he stated that he “climbed up on the top of the Capitol building and … had a first row seat.”
After the FBI was tipped off that Griffin had entered the Capitol grounds on January 6, the government charged Griffin with two misdemeanor violations sounding in trespass and disorderly conduct under 18 U.S.C. § 1752, a misdemeanor that carries a maximum penalty of one year imprisonment.
Griffin’s Facebook post has since been deleted, but these screenshots from it were included in the criminal complaint against him:
The Department of Justice appears to have an double standard when it comes to enforcing 18 U.S.C. § 1752. Recall that hundreds of protesters “broke through Capitol Police barricades” before “storming” the Capitol Building and the Supreme Court during the Justice Kavanaugh confirmation hearings.
One photo from Roll Call shows some of those protesters standing in the same “restricted area” the government alleges Griffin “illegally entered.”
Yet none of these protesters was charged under 18 USC § 1752 despite the fact that Congress was disrupted when the protesters invaded the Capitol Building in the middle of the confirmation hearings. Instead, they were charged with D.C. Code §22-1307 – a local law that carries a maximum of 90 days in jail.
John Adams said that ours is a government of laws and not of men. Yet it becomes clearer every day that the opposite is true – the entrenched bureaucrats at the Department of Justice have one set of rules for those it views as enemies of Democrats and another for those they view as their political allies. And we know which category Couy Griffin falls into.
Griffin was arrested on January 19, 2021, and as with many of those who were merely present at the Jan. 6 melee (and as I wrote about regarding another Jan. 6 prisoner here), the government prosecutors sought to detain him without bail for the duration of his criminal prosecution.
In its motion for pretrial detention of Griffin, the government argued that Cowboys for Trump “advocates for fun rights” and that Griffin “is an inflammatory provocateur and fabulist who engages in racist invective and propounds baseless conspiracy theories, including that Communist China stole the 2020 Presidential Election.” According to the government, Griffin’s “inflammatory conduct, repeated threats, delusional worldview, and access to firearms makes him a danger to the community.”
In other words, the prosecutors asked that Griffin be deprived of his liberty indefinitely pending trial simply because they disliked his opinions about politics and government.
Unsurprisingly, the magistrate judge granted the prosecutors’ request and ordered Griffin detained without bail.
On appeal, however, Chief Judge Beryl Howell overturned that pretrial detention order and allowed Griffin to be released pending his trial.
The following exchange took place between the court and the prosecutors during a Feb. 5, 2021 bail hearing:
THE COURT: All right. And so — I want to be clear about the basis for the Government’s seeking pretrial detention here …. So if I’m understanding the Government’s position correctly, you think that Mr. Griffin presents a serious risk of flight because of his statements which the Government’s interpreting as basically being anarchist, not believing in the Government at all; do I have that pretty much right?PROSECUTOR: Yes. That’s pretty much correct, yes.THE COURT: And there is also no allegation …. that he damaged any federal property, that he injured or risked injuring another person because of his conduct on January 6th, and certainly didn’t have a weapon to do so on January 6th; is that right?PROSECUTOR: Yes. That’s correct.
Such brazenness is stunning. In clear violation of the Bail Reform Act and a host of constitutional provisions – as well as the Supreme Court’s holding in Wisconsin v. Mitchell – the government openly admitted that it wanted to indefinitely deprive an American citizen of his liberty simply because it disagreed with his abstract beliefs about the government.
In reading the transcript, you can feel Chief Judge Howell’s eyes rolling.
Griffin, who never even entered the Capitol building, was released on February 5, 2021 after having served nearly three weeks in a federal lockup – for nothing more than a simple trespass.
But Griffin’s case was far from over. In fact, his prosecution has dragged on for nearly seven months, and just this week, in a court filing seeking permission to extend it even longer, federal prosecutors made a breathtaking admission.
After explaining that the government possesses “[t]housands of hours” of video footage from a variety of sources, they conceded these materials include recordings of Capitol Police Officers allowing protesters to enter the so-called “restricted” area into which Griffin is alleged to have trespassed. The prosecutors stated:
“[W]e are not in a position to turn over the universe of information we possess for Defendant to review. Although we are aware that 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” (emphasis is mine).
Let’s underline that point: federal prosecutors have evidence – which so far they refuse to provide to any of the Jan. 6 criminal defendants – that Capitol Police Department officers moved obstructions to allow protesters to enter locations that prosecutors are now calling “restricted areas.” And more than that, the government possesses evidence that the officers were taking photos with, hugging and fist-bumping many of those who they allowed to enter those areas.
Add to this the fact that of the course of an hour and a half, Griffin was never asked to leave the area by the police – an assertion by Griffin that the prosecutors do not challenge – and it becomes clear that the government is going to have a serious problem meeting its burden of proof.
Indeed, 18 USC § 1752(a) prohibits individuals from” knowingly enter[ing] or remain[ing] in any restricted building or grounds without lawful authority to do so.” The Supreme Court held in Bryan v. United States that for a defendant to have acted willfully, he must have “acted with knowledge that his conduct was unlawful.”
But if the Capitol Police were allowing the protesters to access certain areas that the feds now claim were “restricted,” or were acting in a way that communicated their acquiescence or approval of the protesters’ physical presence in those locations, there is simply no way that the government can prove beyond a reasonable doubt that those protesters-cum-criminal defendants broke the law.
At the bail hearing, Chief Judge Howell presaged this issue, stating:
“The charge under 18 U.S.C. 1752(a)(1) with which Mr. Griffin is charged, you know, does require more than simply having – simply presenting proof of the fact that Mr. Griffin jumped over some fences or barriers, you know, to get onto the Capitol grounds …. that fact alone doesn’t constitute a crime under Section 1752(a)(1) …. In addition to breaching barriers of a restricted space, the Government also has to prove that the defendant knowingly entered this restricted building without lawful authority” (emphasis is mine).
This week’s revelation by federal prosecutors that Capitol Police Officers either explicitly or implicitly authorized protesters to enter the very portions of the Capitol grounds that those protesters are now being charged with trespassing onto guts the government’s case.
It was hardly surprising news then that federal prosecutors offered Griffin a confidential plea deal this week. In all likelihood, the prosecutors know that they can’t prevail at trial and so are doing whatever they can to scotch the matter as quickly and quietly as possible before they have to disclose the exculpatory evidence in their possession.
Once that material is provided to the defense, Griffin and others may well choose to take their cases to the mat. And an acquittal at trial for a Jan. 6 defendant – let alone several of them – would be an enormous humiliation for the Department of Justice.
The DOJ is undoubtedly aware of this, and I suspect it is trying desperately to avoid such a black eye at all costs – even if that means offering favorable plea dispositions to people like Cuoy Griffin for charges that it knows should never have been brought in the first place.
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