Marina Medvin’s Client Signs a Plea with the Potential of a Terrorism Enhancement

Marina Medvin is the sweet spot of January 6 lawyers. She’s a legit lawyer, doing particularly good work trying to challenge the asymmetrical access defendants get to security video of the attack. She clearly serves the interests of her clients rather than grifting or focusing more on scoring political points, as some other January 6 defense attorneys appear to do. But she’s also a right wing activist in her own right.

As such, she spends a great deal of time calling people she doesn’t like “terrorists.”

She uses debunked claims about (foreign) terrorists to try to sow fear about immigration.

She spends a great deal of time demanding that the 9/11 attackers be called terrorists.

She calls the evacuation of Afghans who helped the US fight terrorism the importation of terrorists.

She labels Joe Biden’s effort to craft a positive outcome out of Donald Trump’s capitulation to the Taliban as negotiating with terrorists.

She holds protestors accountable for those they affiliate with who call for violence.

She even complains when those held as — and those guarding — terrorists get treated humanely.

Yesterday, with the benefit of Medvin’s able counsel, her client Jenny Louise Cudd pled guilty under a plea agreement that permits the government to ask for a terrorism enhancement under U.S.S.G. § 3A1.4 at sentencing.

To be sure, I agree with Medvin’s assessment yesterday that it is unlikely the government will actually push for this enhancement with Cudd (and I think it even more unlikely that Judge Trevor McFadden would side with such a government request). This appears to be a standard part of any January 6 plea agreement involving sentencing calculations but no cooperation agreement; one thing cooperators are getting — especially those in militia conspiracy cases — is an assurance they won’t been deemed terrorists at sentencing.

Still, Cudd won’t be sentenced until March, and the government may have a far more complete story to tell about the attempted revolution that Cudd applauded by then, a story that will likely incorporate some of the facts to which Cudd admitted under oath yesterday. You never know what DOJ will do or Judge McFadden might find plausible by then.

I raise the terrorism enhancement language in Cudd’s plea agreement not because I think she’ll be treated as one come sentencing (thus far, I think Scott Fairlamb is at greatest risk of that, because his statement of offense admitted both to using violence and to his intent to intimidate those certifying the vote). Rather, I raise it to show that even a right wing activist like Medvin agrees with my reading of the language in these plea agreements. The government is reserving the right to treat these defendants, even someone who pled down to a trespassing misdemeanor like Cudd, as terrorists at sentencing. To be clear: Medvin doesn’t think this will work legally nor does she think her client is implicated in the violence of those with whom she chose to affiliate on January 6, but that is what she described the language effectively means in Cudd’s plea hearing.

Such terrorism enhancements are how domestic terrorists get labeled as terrorists. Because domestic terrorist groups like the Proud Boys or Oath Keepers aren’t labeled as (foreign) terrorist groups by the State Department, affiliation with or abetment of those groups is not per se illegal (as it might be under material support statutes for foreign terrorist organizations). It’s not until sentencing, then, that the government can argue and a judge might agree that the specific crime a person committed involved acts dangerous to human life, and (in the case of January 6) an attempt to intimidate or coerce the policy of government. If the judge does agree, a terrorist enhancement could expose the defendant to a much longer sentence as a result, a guidelines range of 121 to 151 months for someone with no criminal history.

This is a detail that has gone almost entirely unreported elsewhere: that DOJ is building in an ability to treat these defendants as terrorists when it comes to sentencing, sentencing that may be five months in the future.

Mind you, since this would be domestic terrorism, the government could not just wildly label someone as a terrorist for attending a protest at which others present espouse violence, as Medvin has done of Muslims. They’d have to lay out a specific intent on the part of the defendant to threaten force to coerce some political outcome. But if they do so with these January 6 defendants, then they may be legally branded as terrorists for their actions on January 6.

8 replies
  1. Rugger9 says:

    I am a little surprised that Ms. Medvin is taking the risk of leaving this path for the government if she felt there was little or no opportunity that the government could prove a terrorism rap. It’s not clear to me what pro quo she got for that quid, but IANAL.

    • Mojo Risin' says:

      Mariska Melvin is not a rare type, an ex-USSR chabadnik ultra-right chaos agent.

      Almost everyone of that background is truly warped on a personal level, and their tendency towards criminality is a truly complex, disturbing thing.

    • vvv says:

      She may not have had much choice as per Dr. Wheeler’s article: “This appears to be a standard part of any January 6 plea agreement involving sentencing calculations but no cooperation agreement; ….”

  2. subtropolis says:

    I’m fine with DoJ being circumspect about levying terrorism enhancements. We certainly don’t want to set any precedents that provide a path for the knuckle draggers to brand every lady in a pink hat a “terrorist”.

    I have to take issue with this line: “She spends a great deal of time demanding that the 9/11 attackers be called terrorists.”

    While technically true, her rhetoric is, to put it politely, rather disingenuous. What seems to have triggered this asshole was, “False assumption of Muslim responsibility for 9/11”. Blaming all muslims for that crime is, without question, outrageous. And so is twisting that statement to suggest that there is some “woke” rewriting of history which denies that the specific people who were involved were, in fact, terrorists.

    Medvin is clearly not stupid. This kind of disingenuous bullshit is rampant among the creepy right-wingers. I’m confident that you understand that it’s garbage but it rubs me the wrong way for that to have been repeated without calling it out for what it is.

  3. ducktree says:

    Being “stupid” wouldn’t have gotten her this far. Her weaving of falsehood and fact is quite clever and convincing to the uninitiated. What I’d like to ask her is where she’s been finding and then interviewing all these terrorists about their opinions.

    Is it the ones living rent free under her bed, or the larger tribe living in her head?

  4. Silly but True says:

    FWIW, for non-felonies, there is relatively little practical impact on sentencing. This may be a principle issue: a misdemeanor terrorist can still be called a terrorist in the national Jan. 6 dialogue, but for Medvin’s advice to Cudd has to include that people are already calling Cudd a terrorist, so that aesthetic doesn’t much matter as long as it can’t practically send her to jail any longer.

    The enhancement carries stiff increase for felonies, and that would be more difficult to sell; neither Medvin or Cudd were facing that issue, though.

  5. Leoghann says:

    Jenny Cudd is no tragic, easily manipulated, uneducated pawn. She has been involved in real estate and service businesses in the major oil-boom town of Midland, Texas, for over fifteen years. She had enough awareness and ambition to marry into a family whose branches own real estate companies in all of Texas’ major markets. She has been an outspoken proponent of home schooling in both her religious community in very-conservative West Texas and in the community at large. She ran for mayor of Midland in 2020. She is also alleged to have arranged the transportation of a number of local people to Washington for the January 6th rallies, and spoken of it in rhetoric that indicates she was fully prepared to see a MAGA revolution overturn the government of the United States that day. If you’ll check name out on YouTube, you can see that she has been touting a revolution for quite some time.

    • emptywheel says:

      It’s likely we’ll see some of that at sentencing, whether or not DOJ asks for a terrorist enhancement.

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