The ‘Insurrection’ Probe Is Falling Apart

He is known as the “zip tie guy.”

In one of the most iconic photographs of the January 6 Capitol melee, Eric Munchel, wearing tactical gear, is seen holding up a fistful of zip ties in the Senate gallery. Munchel, the media quickly concluded, brought the flex cuffs to arrest lawmakers attempting to certify the results of the 2020 presidential election. The woman photographed with him later was identified as his mother, Lisa Eisenhart.

The top federal prosecutor who handled the first two months of the Justice Department’s Capitol breach probe recently bragged that Munchel was one of the first protestors targeted in the agency’s unprecedented 50-state manhunt for alleged “insurrectionists.”

Former U.S. Attorney Michael Sherwin told “60 Minutes” that he authorized the arrest of more than 100 people prior to January 20 in a display of “shock and awe” to intimidate Americans who planned to protest Joe Biden’s inauguration; he specifically referred to the detention of the “the zip tie guy” as a way to send a message. “We wanted to take out those individuals that essentially were thumbing their noses at the public for what they did.”

Munchel and Eisenhart, once they realized they were under investigation, turned themselves in to law enforcement a few days after the Capitol protest. Government prosecutors successfully fought to keep both behind bars pending their trial although they committed no violent crime and had remained in the building for less than 15 minutes; on January 24, the D.C. federal judge presiding over the Capitol investigation ordered both defendants transported from Tennessee to a Washington jail to await their day in court.

Prosecutors darkly warned in late January the two Americans could be the first Capitol defendants to be charged with sedition, a crime almost never applied to U.S. citizens.

A Major Blow to the Prosecution

And that’s when the case against Munchel and Eisenhart began to fall apart. In fact, several cases now face an uphill battle as the Justice Department’s abusive overreach related to January 6 is exposed in federal court.

In a major blow to both prosecutors and judges who’ve signed off on dozens of orders to deny bail to Capitol breach defendants—including nonviolent offenders such as Munchel and Eisenhart—the D.C. Court of Appeals on March 26 asked a lower court to “consider anew the government’s motion for detention” for the pair.

The three judges carefully deconstructed the charges against mother and son, noting neither has been accused of violence such as assault or destruction of property. One judge argued the detention order should be reversed, not revisited. In his partial dissent, Judge Gregory Katsas took aim at the Justice Department’s exaggerated case. 

“While there, they attempted neither violence nor vandalism,” Katsas wrote. “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.”

Katsas detailed how both defendants fully cooperated with authorities, both were employed at the time of surrender—Eisenhart has been a nurse for 30 years—and neither has a criminal record with the exception of Munchel’s two marijuana possession charges from several years ago.

The only felony the government could come up with to charge Munchel and Eisenhart—who are being charged together—is “obstruction of an official proceeding,” which is an enhancement count filed against defendants charged with misdemeanors.

After the court’s spanking, the government withdrew its detention order on March 29: Munchel and Eisenhart will now live under the same home detention rules a Tennessee judge ordered more than two months ago and that the government successfully appealed.

The appellate court order had a quick impact on other cases. That same day, another federal judge, citing the court’s opinion, challenged the Justice Department’s pre-trial detention motions for two members of the Oath Keepers, a group facing conspiracy charges for its role in the Capitol breach.

U.S. District Court Judge Amit Mehta ordered the release of Donovan Crowl and Connie Meggs. (On March 24, Mehta released Laura Steele, a defendant in the Oath Keepers case, and on March 12, Mehta released an ailing 66-year-old veteran prosecutors accused, without evidence, of helping Oath Keepers plan to storm the building.) The government then withdrew its detention request for another Oath Keeper, Graydon Young, on March 29.

No Sedition Charges So Far

Despite heavy-handed threats and braggadocio about pending “sedition” cases, nearly three months later, the Justice Department has nothing even close to this boast—and their mouthpieces in the media are getting nervous. 

“But as the sprawling investigation has unfolded, prosecutors have sometimes struggled to maintain a consistent narrative and had to walk back statements made in court hearings or in papers,” the Associated Press warned this week. “It has created an opening for defense attorneys to try to sow doubt in the case.”

Prosecutors had to walk back early claims of assasination plots against elected officials. The Justice Department is having a hard time building its conspiracy case against ten Oath Keepers. More than 300 people have been arrested but no one yet faces a charge of sedition.

Politico reporters just dropped the bad news that most protestors won’t face jail time. 

“Although prosecutors have loaded up their charging documents with language about the existential threat of the insurrection to the republic, the actions of many of the individual rioters often boiled down to trespassing,” Josh Gerstein and Kyle Cheney admitted in an article published Tuesday, an observation American Greatness has been pointing out for weeks. “Justice Department prosecutors sent expectations sky-high in early statements and court filings, describing elaborate plots to murder lawmakers—descriptions prosecutors have tempered as new details emerged.”

The government also will have to contend with the long-term legal consequences of continuing to pursue obstruction charges that will criminalize future political dissent. As I explained in this column, the vague charge, initially aimed at white-collar criminals not political protesters, has been applied to more than 130 defendants so far. 

But any conviction would codify its use against anyone who disrupts a government meeting or ceremony. “While violent assaults in the Capitol are rare, protests and acts of civil disobedience—such as disrupting congressional hearings or even House and Senate floor sessions, are more common,” Politico admitted. “That means prosecutors and judges will have to weigh how much more punishment a Trump supporter who invaded the Capitol during the Electoral College count deserves than, say, an anti-war protester chanting at a CIA confirmation hearing or a gun-control advocate shouting in the middle of the State of the Union address.”

No kidding.

Weaponizing January 6

The Capitol probe investigation has been a vengeful crusade from the start. Democrats, the news media, and many Republicans quickly jumped on early narratives that were later revealed to be untrue, such as tales about an “armed insurrection” or how a Capitol police officer died

The thoughtcrime of doubting the legitimacy of the 2020 presidential election has been cited in charging documents and during detention hearings, another clear indication the probe is about retribution and silencing rather than justice. Homeschoolers, gun owners, and veterans have been mocked and persecuted by their own government.

Top Biden Administration officials are weaponizing the events of January 6 in an attempt to depict all Trump supporters as “domestic violent extremists.”

But although these Americans have been tried and convicted as “insurrectionists” in the news media, the government has created, by their own overheated hyperbole, a nearly insurmountable obstacle to proving their initial accusations in court. It’s a legal stretch to get from amped-up protestor to seditionist—and it looks like the Justice Department has a long way to go.

About Julie Kelly

Julie Kelly is a political commentator and senior contributor to American Greatness. She is the author of Disloyal Opposition: How the NeverTrump Right Tried―And Failed―To Take Down the President. Her past work can be found at The Federalist and National Review. She also has been featured in the Wall Street Journal, The Hill, Chicago Tribune, Forbes, and Genetic Literacy Project. After college graduation, she served as a policy and communications consultant for several Republican candidates and elected officials in suburban Chicago. She also volunteered for her local GOP organization. After staying home for more than 10 years to raise her two daughters, Julie began teaching cooking classes out of her home. She then started writing about food policy, agriculture, and biotechnology, as well as climate change and other scientific issues. She graduated from Eastern Illinois University in 1990 with a degree in communications and minor degrees in political science and journalism. Julie lives in suburban Chicago with her husband, two daughters, and (unfortunately) three dogs.

Photo: Win McNamee/Getty Images

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