In a stunning but well-deserved rebuke, the D.C. Court of Appeals on Monday ordered that the pre-trial detention of George Tanios, one of two men accused of spraying Officer Sicknick and others on January 6, be reversed.
The brief ruling, which did not include the usual opinion explaining the court’s decision, bluntly stated:
“ORDERED and ADJUDGED that the district court’s May 12, 2021 order be reversed and the case remanded for the district court to order appellant’s pretrial release subject to appropriate conditions, including home detention and electronic monitoring. On this record, we conclude that the district court clearly erred in determining that no condition or combination of conditions of release would reasonably assure the safety of the community.”
Tanios and his friend, Julian Khater, were arrested in March. A grand jury indicted the men with numerous felonies including conspiracy and assaulting an officer with a “dangerous or deadly weapon.” Tanios and Khater brought chemical irritants, including bear spray, to the capital in anticipation of scuffles with leftist agitators. Tanios, however, is not accused of spraying his key chain pepper spray container. Their arrest and indictment are aimed at keeping alive the lie that Sicknick was killed in the line of duty by Trump “insurrectionists,” a falsehood repeated in the news media and by Joe Biden as late as Thursday at the White House.
Biden’s Justice Department asked the court to keep Khater and Tanios behind bars awaiting trial. They have been incarcerated in the harsh D.C. Deplorable jail since March; Tanios has no criminal record, operated a college campus sandwich shop (which is now shuttered) in West Virginia, and is the father of three young children.
“The record reflects that Tanios has no past felony convictions, no ties to any extremist organizations, and no post-January 6 criminal behavior that would otherwise show him to pose a danger to the community within the meaning of the Bail Reform Act,” the three Circuit judges wrote in the August 9 opinion.
In May, Judge Thomas Hogan, an 83-year-old Reagan appointee, denied a motion to release both Khater and Tanios. (Khater’s family offered a $15 million bond package.) Hogan said the men posed a danger to the community and that he “couldn’t get past” the accusation that they attacked a police officer.
Tanios’ lawyer argued that a previous ruling by the D.C. Circuit should not apply to all January 6 defendants; D.C. District Court judges are relying on the so-called “Munchel” order to inform their own decisions in pre-trial detention hearings. (I explained the case here in March.)
“Accordingly, we know Munchel did not create a categorical approach,” Richard Walker, Tanios’ public defender, wrote in his appeal motion. “Munchel did not authorize the District Court to place Tanios in a specified ‘bucket’ for special treatment. Munchel did not create a presumption of any kind that applied to Tanios. Munchel did not even create a ‘guideline’ for the District Court to follow in this case or any other. Unquestionably, with its approach, the District Court placed Tanios at a highly disadvantaged starting point.”
Joe Biden’s Justice Department has sought pre-trial detention for roughly 100 Capitol defendants. About 60 remain behind bars denied bail until either a trial begins next year or a plea agreement is reached. Three dozen or so are detained in the D.C. jail.
The government has seven days to appeal the circuit court decision; after the Munchel ruling in March, which did not directly reverse the lower court, prosecutors quickly withdrew the government’s original detention motion.