Federal prosecutors last week scored a big victory after a Washington, D.C., jury took less than three hours to find Guy Reffitt, the first January 6 defendant to stand trial, guilty on all counts.
The Justice Department’s winning streak might be short-lived, however. Prosecutors will have a tougher task with the trial starting Monday for Couy Griffin, the “Cowboys for Trump” leader arrested for his minor and nonviolent involvement in the Capitol protest on January 6.
Griffin was the subject of my very first article over a year ago on the Justice Department’s abusive prosecution of January 6 protesters in which, coincidentally, I asked the rhetorical question, “Where is the outrage over America’s political prisoners?” as official Washington was in a tizzy over Russian President Vladimir Putin’s imprisonment of his country’s star dissident.
After the government charged Griffin on January 19, 2021 with two low-level trespassing misdemeanors, acting U.S. Attorney for the District of Columbia Michael Sherwin asked the court to keep Griffin detained pending trial. Sherwin, recall, bragged about a “shock and awe campaign” of January 6 arrests prior to Joe Biden’s inauguration.
Relying mostly on remarks Griffin made during and after the protest, Sherwin claimed that the New Mexico county commissioner, who never entered the Capitol, was a danger to the community. “[The] defendant 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,” Sherwin’s office wrote in a motion seeking Griffin’s imprisonment. “He denies the lawful election of the president and as [sic] stated repeatedly that Biden will never be president.”
Sherwin concluded Griffin is a racist because he publicly objected to playing the black national anthem at professional football games and suggested that the players “go back to Africa and form your little football teams over in Africa.”
A federal magistrate judge agreed. Calling the nation’s capital a “war zone” on January 6, Judge Zia Faruqui claimed Griffin’s comments were not protected under the First Amendment and signaled his defiance of the entire U.S. government. “[Griffin] won’t listen to those conditions [of release] because he may ultimately decide that those conditions are part of a flawed system that he must go by any means to overthrow and disrupt,” Faruqui said during a February 2, 2021 detention hearing. (The chief judge ordered Griffin’s conditional release a few days later.)
Faruqui also told Griffin’s defense lawyers during the hearing that “there is no doubt in my mind, in fact, in anyone’s mind, that there was a person protected by the Secret Service who was in that building, which is the Vice President of the United States of America.”
Those words might come back to bite the good judge.
The whereabouts of both Kamala Harris and Mike Pence are the basis for thousands of criminal charges related to January 6, including the two charges against Griffin. As Secret Service protectees, the Justice Department alleges under 18 U.S. Code, section 1752, their presence inside the Capitol during the four-hour disturbance rendered the building and surrounding grounds a “restricted” area closed to the public. Nearly every one of the nearly 800 Americans charged in the massive Capitol breach probe faces at least one 1752 count.
But the Justice Department recently was forced to admit that Harris was not in the building for most of the day on January 6. Harris, who was still a member of the U.S. Senate, had in fact left the Capitol in the late morning and inexplicably went to the headquarters of the Democratic National Committee, the same building where a pipe bomb allegedly was planted the night before.
Prosecutors have begun amending language in court filings to reflect the fact Harris was not inside the Capitol despite making the assertion in thousands of charging documents.
Only one D.C District Court judge has upbraided the Justice Department for its insidious lie about Harris. Judge Trevor McFadden last month told prosecutors in a separate case that the government had a “big problem” for misleading a grand jury for over a year as to Harris’ whereabouts and that the falsehood undermined “any confidence the Court can have in the Government’s representations.”
McFadden will preside over Couy Griffin’s bench trial next week
Now it appears that the government might also be lying about Mike Pence’s location on January 6—and prosecutors are desperate to conceal exactly where the vice president went after he was evacuated from the Senate chamber around 2:20 p.m. that day. Thousands of criminal complaints, grand jury indictments, and government motions, just like the Harris reference, state that Pence “remained in the United States Capitol from the time he was evacuated from the Senate Chamber until the sessions resumed,” which occurred around 8 p.m.
But the proof is nonexistent. To that end, Griffin’s attorneys asked the Justice Department to produce official White House photographs of Pence and his family during the six-hour break; prosecutors insist they don’t have them.
Further, in numerous cases including Griffin’s, prosecutors are asking judges to prevent cross-examination of Secret Service agents who could confirm Pence did indeed remain in the building or on the Capitol grounds after the breach.
As a replacement, the government filed a sworn statement by a U.S. Capitol police officer who said he watched surveillance video that established “Vice President Pence remained in the Capitol Complex throughout the Capitol breach.” When Griffin’s defense attorney, Nicholas Smith, asked the government to provide the surveillance video captured by the Capitol police’s camera system, prosecutors argued that releasing the video, even under a protective order, would compromise security.
Just in time for trial before an increasingly skeptical McFadden, the Justice Department made a second edit to Griffin’s original indictment with another caveat: the area was restricted because Pence “was and would be [emphasis added] temporarily visiting” the building.
While that qualifier is part of the original statute, it was not cited until this month by the government. Arguing that the building was restricted because Pence was inside during the breach is one thing; compelling criminal indictments on the notion that Pence wasn’t there but planned to return is something else.
Either way, McFadden is having none of it; he wants proof. “If the Government wishes to proceed [on both charges], it is hereby ORDERED to have a witness present at trial who can speak based on first-hand knowledge as to the whereabouts of former Vice President Pence during the alleged offense conduct,” McFadden ruled on March 9.
The mythology of January 6 revolves around any number of lies: an “armed” insurrection without firearms; police officers who didn’t die at the hands of Trump supporters; a “conspiracy” that doesn’t exist—to name a few.
But lies related to the whereabouts of Harris and Pence—whose own advisor continues to propagate the possible falsehood—will take the dishonest narrative to a new level. Thousands of criminal charges, which have destroyed the lives of those prosecuted, depend on this lie. Exposing it in court will reveal another aspect of this abusive witch hunt of Trump-supporting Americans.