‘Unprecedented’ Capitol Protest Sets New Precedents

Unprecedented: It is the word most often applied to the events at the Capitol on January 6.

In his remarks that afternoon, as the chaos was still ongoing, Joe Biden warned that “our democracy is under unprecedented attack.” House Speaker Nancy Pelosi (D-Calif.), Attorney General Merrick Garland, and leaders of both political parties also describe the four-hour mostly nonviolent disturbance at the Capitol complex as something without precedent. 

“On January 6, 2021, the world witnessed a violent and unprecedented attack on the U.S. Capitol, the Vice President, Members of Congress, and the democratic process,” wrote Republican and Democratic senators in a joint committee report released earlier this year.

“We mourn the deaths of the two Capitol policemen and others connected to these unprecedented events,” the nation’s top military leaders, including Chairman of the Joint Chiefs of Staff Mark Milley, said in a January 13 statement. (We now know that those two officers did not die as a result of the protest.)

The national news media also flaunts the word with ease and frequency, historical context and common sense be damned. One federal prosecutor who handled the Oklahoma City bombing case, which resulted in the murder of 168 innocent people including 15 children under the age of five, told the New York Times in April that “the Capitol attack was, thankfully, an unprecedented event.”

Joe Biden’s Justice Department argues for unusually harsh sentences on the basis that “the crimes . . . committed on January 6 are unprecedented.” Therefore, the government routinely claims in sentencing motions, judges should ignore precedent for similar offenses. “These crimes defy statutorily appropriate comparisons to conduct in other cases that occurred before January 6, 2021,” one prosecutor wrote in August.

Long delays in the discovery process are blamed on the “unprecedented” volume of evidence, which includes tens of thousands of hours of video footage and hundreds of thousands of FBI documents. Ditto for delayed trial dates; foot-dragging on discovery renders many defense lawyers unable to prepare for trial. Judges repeatedly cite the “unprecedented” nature of the Capitol protest and massive trove of evidence as an excuse to stall trial dates until the middle of 2022.

New Norms

Portraying January 6 as “unprecedented” is not an accident; it justifies extra-constitutional, judicial, and legislative action under the guise that nothing like this has ever happened before and that language will rationalize future measures to make sure it never happens again. Nothing is off the table as the Biden regime, Beltway judges, and the media seek to avenge an “unprecedented” protest in a government building where the only people killed were Trump supporters, including at least one by a federal police officer.

Defendants are locked up in a political prison, denied bail for their unacceptable views on the 2020 election, abused by prison guards, and stripped of human and civil rights before a trial date is even on the books. A post-Enron felony law intended to prevent interference in Congressional criminal investigations has instead been applied to at least 230 Americans charged with the preposterous “obstruction of an official proceeding” offense, even though Congress had recessed before most got inside the building. Offenders who plead guilty to the “obstruction” will spend years in prison.

Low-level misdemeanors, such as “parading” in the Capitol building, also result in jail time. Prosecutors refer to nonviolent protesters as “domestic terrorists” without charging them as such. The presumption of innocence, due process, and equal treatment under the law have been torched

Take, for example, the case of Timothy Hale-Cusanelli. Arrested on January 17, Hale has been detained in the D.C. jail reserved for January 6 defendants since early February. The Army reservist is not accused of committing a violent crime; he faces no charge related to assault, weapons, or vandalism.

Yet Judge Trevor McFadden, a Trump appointee, has twice granted the Justice Department’s request for Hale’s continued pretrial detention. Hale now is on his 10th month behind bars despite having no criminal record.

At the same time, McFadden has allowed the Justice Department to delay Hale’s trial on numerous occasions. In a scathing motion filed in September, Jonathan Crisp, Hale’s attorney, tallied the number of times McFadden agreed to the government’s request to exclude time from the speedy trial clock, which is 70 days. 

“As of the date of this pleading, and at the Government’s behest, This Honorable Court has exempted 221 days from the speedy trial calculation,” Crisp noted. “The Speedy Trial Act has been continually circumvented since Mr. Hale-Cusanelli’s indictment and the government is yet again seeking to obviate the efficacy of the Act by invoking the same refrain it has provided since March 2021. It has done so while not offering any guarantees their requests will not continue unabated for months or even years.”

Crisp asked McFadden to honor his word; the judge had previously warned the Justice Department that he had no intention of moving Hale’s November 9 trial date. In fact, he expressed his concerns in July that Hale’s constitutional rights were under attack. “You would not arrest [someone] then gather evidence later. That’s not how this works,” McFadden scolded assistant U.S. Attorney Kathryn Fifield. “This does not feel what the Constitution [and] the Speedy Trial Act envisions.”

Subverting the Constitution

But McFadden, like every other D.C. District Court judge handling nearly 700 January 6 cases, clearly is unburdened by the fact he’s contributing to the flagrant abuse of Hale’s constitutional rights. Last month, McFadden, breaking his own promise, moved Hale’s trial to May 2022, using pandemic restrictions and spring break schedules as his latest excuse. McFadden still, however, refuses to release Hale, who will languish in jail for at least another six months.

The court’s newest broadside came this week in another precedent-setting ruling against Donald Trump. Judge Tanya Chutkan, appointed by Barack Obama in 2014, denied Trump’s assertion of executive privilege to keep White House records out of the hands of Pelosi’s January 6 select committee. “This unprecedented attempt to prevent the lawful transfer of power from one administration to the next caused property damage, injuries, and death, and for the first time since the election of 1860, the transfer of executive power was distinctly not peaceful,” Chutkan wrote in the opening paragraph of her 34-page ruling.

Siding with Joe Biden, who broke another precedent by twice rejecting Trump’s executive privilege claims, Chutkan noted that “this case presents the first instance . . . in which a former President asserts executive privilege over records for which the sitting President has refused to assert executive privilege.”

Chutkan, who has set new precedents herself by exceeding recommendations made by prosecutors and ordering January 6 trespassers to jail, seemed persuaded by Biden’s argument that desperate times require desperate measures. 

“These are unique and extraordinary circumstances,” White House Counsel Dana Remus wrote in August. “The constitutional protections of executive privilege should not be used to shield, from Congress or the public, information that reflects a clear and apparent effort to subvert the Constitution itself.”

Therein, of course, lies the rub. The Constitution, along with every foundational precedent, can be subverted on the grounds that January 6 was “unprecedented.” Joe Biden, the Justice Department, and Beltway judges are not simply justified in breaking the rules, they are obligated to do so. And that, unlike January 6, would be truly “unprecedented.”

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