Trevor McFadden Uses Stormtroopers to Justify His Promise to Let Jan6ers Off Easy

In the middle of a rather cursory opinion rejecting David Judd’s claim that he has been selectively prosecuted as compared to Portland rioters, Trevor McFadden cites this AP story to support a claim that “thousands” of protestors gathered every night in Portland.

For the first prong, Judd argues that he is similarly situated to multiple defendants who faced charges in the District of Oregon. Those defendants rioted outside the Mark Hatfield Federal Courthouse in Portland during the summer of 2020. See Def.’s Mot. at 2–4. The riots erupted after the death of George Floyd in May 2020 and raged for months. Thousands gathered nightly, vandalizing the courthouse and hurling objects at federal agents guarding it. Officers responded with tear gas and rubber bullets to disperse rioters, but the riots continued, causing havoc. See generally Mike Balsamo and Gillian Flaccus, On Portland’s Street: Anger, fear, and a fence that divides, AP News (July 27, 2020). [my emphasis]

In fact, the story says that the 4,000 gathered on that particular night was the largest crowd federal officers had seen, not that those kinds of numbers consistently came out.

Under orders to protect the courthouse — federal property that has been increasingly targeted as the city’s protests against racial injustice march on — the agents were accustomed to the drill. But tonight, the crowd was huge, estimated at 4,000 people at its peak and the largest they had seen.

The numbers the AP cites for those involved in violence or those that remained after officers responded is smaller.

As she spoke, small pods of three to four protesters dressed in black circulated in the crowd, stopping every few minutes to point green laser beams in the eyes of agents posted as lookouts on porticoes on the courthouse’s upper stories.


Outside, hundreds of protesters surged back from the courthouse with each new round of tear gas, dumped saline solution and water into their stinging eyes, vomited or doubled over to catch their breath, then regrouped to march back to the fence.

“Stay together, stay tight! We do this every night!” they chanted.

The protesters’ numbers, however, were half what they had been just a few hours before.


Tear gas canisters bounced and rolled in the street, their payload fizzing out into the air before protesters picked them up and hurled them back over the fence at the agents, who held their ground.

A woman weaved through the crowd of the few hundred people who remained and told someone on the phone, “We’ve reached some kind of stand-off, I think.”

When the federal agents finally came, they came with force. [my emphasis]

So it actually doesn’t support McFadden’s claim, which is probably why he cites it, “generally:” to hide that in fact he doesn’t have a source for his claim about sustained crowds of thousands of rioters (though at that time in July 2020, protests did remain large for a brief period).

The article is not one David Judd cited himself in either his original motion or his reply — perhaps because the AP story makes it crystal clear why firecrackers are so dangerous when thrown at cops, as he is accused of doing.

That McFadden’s clerk did research on their own on the Portland unrest and that McFadden’s clerk chose this particular article — by one of Billy Barr’s favorite reporters and covering unrest overnight on July 24 to 25, 2020 — is really telling. That’s true because the story portrays details directly pertinent to Judge McFadden’s opinion that should, but do not, appear in his opinion. And it’s also true because McFadden’s clerk relied on the AP story and not this NYT story from the same week covering the same unrest, which I’ll come back to.

At the core of Judd’s argument is that those charged with violence in Portland got (starting even under Billy Barr) and continue to get (under Merrick Garland) Deferred Prosecution Agreements, rather than the felony charges Judd is facing. To make his argument, Judd cherry-picked some cases and complained that he wasn’t being treated as nicely as a guy who (unlike Judd) was charged with a crime of terrorism, but whose charges were dismissed when the guy was murdered. DOJ pointed out more problems with Judd’s claims, including that he had claimed felony assault charges were misdemeanors, left out cases similar to his that were charged similarly, and ignored cases where DOJ deferred to state prosecution.

But DOJ professed to be unaware of the reason why three cases on which Judd (and McFadden) focused closely led to a DPA.

Further, contrary to his claims, each of the three cases Judd cites in his motion as examples where a defendant had only been charged with a misdemeanor actually involved a felony charge to 18 U.S.C. § 111(a). Although it is true that each case was eventually dismissed by the government for unknown reasons (typically after the defendants repeatedly agreed to waive their rights to a preliminary hearing or indictment over a period of months), all were initially facing felony charges. [my emphasis]

DOJ’s claim not to know why these cases entered into a DPA is just as suspect as McFadden’s choice of a source for the crowd sizes in Portland.

That’s because the three cases at the core of this debate all appear to involve assaults not at Portland Federal courthouse (marked with the green arrow), but assaults a block away, not on Federal property at all, probably close to the blue arrows marked below.

  • David Bouchard, arrested overnight on July 23-24 at Main and 4th by a Federal Protection Services officer stationed in Colorado
  • Joshua Webb, arrested overnight by a US Marshal on July 25-26 on Salman between 4th and 5th by a US Marshal
  • Thomas Johnson, arrested overnight by a US Marshal on July 25-26 “in the park” (but because it appears to be the same instance as Webb, probably towards Main & 4th) by a US Marshal

All three of these arrest affidavits include a drawing of the city block that is Federal property, and then describe arrests that don’t take place on that Federal property.

The arrest affidavits offer no explanation for what led the Federal agents to leave the courthouse they were purportedly defending.

Specifically, on July 26, 2020, federal law enforcement officers attempted to disperse a crowd on SW Salmon Street between 4th and 5th streets in Portland, OR. The crowd was part of a protest that was declared an unlawful assembly by the Federal Protective Service and a riot by the Portland Police Bureau.

In other words, the story McFadden cites for his claim that there were thousands involved in the unrest involved direct reporting from the site the day between these arrests. His clerk researched and found a story about Portland from the week of these arrests, which featured elevated hostility and significantly expanded numbers, because (as even that story noted) Portland was reacting against Billy Barr’s decision to send in Federal agents.

Which brings us back to the NYT story that McFadden could have but did not rely on. It describes that on Friday morning — overnight on July 23 to 24, so covering events from the day when Bouchard was arrested — Federal officers were prowling the streets blocks away from the Hatfield Court House that they were purportedly protecting. And that created legal problems,

After flooding the streets around the federal courthouse in Portland with tear gas during Friday’s early morning hours, dozens of federal officers in camouflage and tactical gear stood in formation around the front of the building.

Then, as one protester blared a soundtrack of “The Imperial March,” the officers started advancing. Through the acrid haze, they continued to fire flash grenades and welt-inducing marble-size balls filled with caustic chemicals. They moved down Main Street and continued up the hill, where one of the agents announced over a loudspeaker: “This is an unlawful assembly.”

By the time the security forces halted their advance, the federal courthouse they had been sent to protect was out of sight — two blocks behind them.

The aggressive incursion of federal officers into Portland has been stretching the legal limits of federal law enforcement, as agents with batons and riot gear range deep into the streets of a city whose leadership has made it clear they are not welcome.


Robert Tsai, a professor at the Washington College of Law at American University, said the nation’s founders explicitly left local policing within the jurisdiction of local authorities.

He questioned whether the federal agents had the right to extend their operations blocks away from the buildings they are protecting.

“If the federal troops are starting to wander the streets, they appear to be crossing the line into general policing, which is outside their powers,” Professor Tsai said.

Homeland Security officials say they are operating under a federal statute that permits federal agents to venture outside the boundaries of the courthouse to “conduct investigations” into crimes against federal property or officers.

But patrolling the streets and detaining or tear-gassing protesters go beyond that legal authority, said David Lapan, the former spokesman for the agency when it was led by John Kelly, Mr. Trump’s first secretary of homeland security.

“That’s not an investigation,” Mr. Lapan said. “That’s just a show of force.”

Indeed, these particular arrests happened just after the Portland City Council voted to cease cooperating with Federal authorities, as described by a DHS OIG Report reviewing the deployment (which McFadden’s clerk might have used to source a claim that the largest protest reached 10,000 participants, but which would have made the authorization problem clear), meaning that invoking the Portland Police Bureau covering the city generally (including where these arrests seem to have taken place) was particularly problematic.

However, on July 22, 2020, the Portland City Council voted to cease cooperation between the Portland Police Bureau and Federal law enforcement. The Portland City Council viewed Federal operations in Portland as an “unprecedented and unconstitutional abuse of power” by the Federal Government.11 According to the Portland City Council resolution, “the Portland Police Bureau shall not provide, request, or willingly receive operational support … from any agent or employee representing or constituting part of deployment under executive order from the president, be they from Department of Homeland Security, the U.S. Marshals Service, the Federal Protective Service, U.S. Customs and Border Protection or any other service.”1

The OIG Report states that officers had authority to be in Portland, but doesn’t address whether they had legal authority to do what the did in this case: leave the building they were protecting and go blocks away, looking for trouble.

An earlier DHS OIG Report described that officers sent into Portland had not been bureaucratically designated in the way they should have been and raised still-unanswered questions about whether DHS Acting Secretaries acted under legal authority when sending troops to Portland.

In other words, there seems to be a ready explanation — one that both DOJ and McFadden have reasons to suppress — for why these cases were diverted: for a number of reasons, the arrests were made under dubious legal authority. (At least one of the other ones Judd cites may have involved less-than-lethal force violation.)

But Trevor McFadden, who made very clear he wanted to consider this kind of selective prosecution claim and has whined for months that Jan6ers are being treated differently, doesn’t mention this ready explanation which (given the research his clerk did to find the AP article and others not included in the record before that) at least his clerk must know. Instead, McFadden goes on a multi-paragraph rant suggesting that DOJ — starting under, “a Republican-appointed U.S. Attorney (under the direction of a Republican-appointed Attorney General),” he notes elsewhere — started diverting these prosecutions in significant numbers.

Judd’s claim is nontrivial. His chart suggests that Portland defendants generally received much lighter treatment than he has. For example, three Portland defendants allegedly struck officers in various ways. One placed an officer in a headlock. See United States v. Bouchard, No. 3:20-mj-00165 (D. Or.), ECF No. 1-1 at 4–5. Another punched and hit an officer in the face with a shield. See United States v. Webb, No. 3:20-mj-00169 (D. Or.), ECF No. 1 at 5. Yet another struck officers with a shield after he tried to pick up a smoke grenade. See United States v. Johnson, No. 3:20-mj-00170 (D. Or.), ECF No. 1 at 5. The Government charged these three defendants with felony assault on a federal officer, just as it charged Judd here. See Gov’t Opp’n at 17–18. That makes some sense—Judd was likewise allegedly present for a fracas with law enforcement at a federal building and used a firecracker (which if it had exploded, would have caused “bodily injury”) to “intimidate” law enforcement. 18 U.S.C. § 111(a). The Government could justifiably seek felony convictions for both Judd and the Portland defendants.

But, incredibly, the Government dismissed the charges against all three Portland defendants. See Bouchard, Motion to Dismiss Complaint, ECF No. 16; Webb, Motion to Dismiss Complaint, ECF No. 22; Johnson, Motion to Dismiss Complaint, ECF No. 9. Judd still faces nine charges, including multiple felonies, even though the Government never alleges that he, unlike the Portland defendants, struck or injured an officer. That he still faces greater charges than the Portland defendants despite that key difference is suspicious.5 That is the kind of “different treatment” that might warrant discovery. Armstrong, 517 U.S. at 470.

The Government responds that it treated Judd and the three Portland defendants equitably because it filed felony charges against all of them. See Gov’t Opp’n at 18. The Government seems to think that the initial charges are all that matter. Not so. By that logic, the Government could avoid discovery of a race-based selective prosecution claim if it indicted similarly situated black and white persons, dismissed the charges against the whites, and prosecuted the black defendants to conviction or plea. The “administration of a criminal law” is not limited to an initial charging decision. Armstrong, 517 U.S. at 464. Nor is it so easily circumvented.

More, the Government’s logic would allow it to charge similarly situated black defendants with felonies and white defendants with misdemeanors. But discriminatory effects include disparities in the “crimes charged.” Stone, 394 F. Supp. 3d at 31. The Government’s argument is thus absurd and untenable—that the Government originally indicted the Portland defendants does not erase the potential for discriminatory effect.6

Nor does the Court accept the Government’s attempt to distinguish these Portland cases on evidentiary grounds. According to the Government, video footage of Judd’s actions solidified the case against him, precluding a dismissal. See Gov’t Opp’n at 20. In contrast, Portland cases relied on officer recollections during nighttime attacks—none captured on video—by mostly masked assailants. See id. Fair enough. This could explain why fewer defendants overall were charged in Portland than here. But by indicting those cases, the Portland prosecutors presumably believed they had sufficient evidence to sustain convictions. See Justice Manual § 9-27.220 cmt. (“[N]o prosecution should be initiated against any person unless the attorney for the government believes that the admissible evidence is sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact.”). If anything, that fact supports Judd’s argument. Evidentiary differences notwithstanding, the Government felt it had enough basis to charge both Judd and Portland defendants. Yet the Government dismissed the charges against only Portland defendants. The suggestion that Portland cases suffered from widespread, post-indictment, evidentiary challenges is thus a tough argument to swallow.


Therein lies a troubling theme that emerges from a wholesale analysis of the Government’s decisions in Portland. The Government dismissed 27 cases brought against Portland defendants, including five felony cases. See generally Appendix to Def.’s Mot. Dismissal of one felony case is unusual. Dismissal of five is downright rare and potentially suspicious.7 Rarely has the Government shown so little interest in vigorously prosecuting those who attack federal officers. Considered in this light, when compared to Portland cases, the disposition of Judd’s case appears an outlier.

5 The D.C. U.S. Attorney’s Office also dismissed charges against the one D.C. defendant mentioned by Judd. She allegedly threw a firecracker at police during a Black Lives Matter protest in August 2020. See Affidavit in Support of Arrest Warrant, United States v. Rogers, No. 2020 CF3 006970 (D.C. Super. Ct. dismissed Sept. 30, 2020). The firecracker burned the pant leg of one officer. See id.

6 The Government wisely dropped this argument at the motion hearing. See Hr’g Tr. at 66.

7 By way of comparison, the Court knows of only one January 6 case that the Government has dismissed among the hundreds of defendants charged for their alleged actions on that day. See United States v. Kelly, No. 21-mj-00128 (D.D.C., dismissed on June 1, 2021). [my emphasis]

DC District’s Trumpiest judge here uses diversions most likely necessitated by the legal abuses and bureaucratic incompetence of the Trump Administration to claim that Jan6ers are being treated poorly. He focuses on arrests made, in very significant part, to fulfill Barr’s priority on such prosecutions in summer 2020, while ignoring the legally suspect circumstances created by Barr’s effort to gin up arrests. And he does so even as he refuses discovery that might confirm this most obvious of explanations.

The proper comparison to the cases McFadden focuses on would be to examine the arrests on January 5 and 6 in DC made by Federal officers away from the Capitol, such as Freedom Square. Yet in that case (particularly at the Washington Monument before the riot kicked off), the evidence suggests that Federal officers were far too lenient on Jan 6, even in the nation’s Capitol on Federal land. At least in the three cases as the center of this dispute, the disparate treatment in Portland appears to have come in the arrests outside of Federal property, not the prosecutorial diversions of those arrests later. Such a comparison would make it clear that Federal authorities treated Trump’s supporters far too lightly, not the opposite.

But McFadden has a goal here, one that — as he notes — he has been developing since at least July.

McFadden properly rules that Judd has not shown enough evidence of selective prosecution to get discovery into why these other prosecutions were diverted (in that, he may have been bound by an opinion issued days earlier by Trump appointee Carl Nichols in the Garret Miller case). Both Trump appointees note that Jan 6 is different from Portland for a number of reasons. In fact, McFadden cites Nichols in describing what he sees to be the difference.

Putting aside any claims that January 6 rioters sought to tear down our system of government (an allegation not made against Judd), their actions endangered hundreds of federal officials in the Capitol complex. Members of Congress cowered under chairs while staffers blockaded themselves in offices, fearing physical attacks from the rioters. See Lindsay Wise, Catherine Lucey, and Andrew Restuccia, “The Protestors Are in the Building.” Inside the Capitol Stormed by a Pro-Trump Mob, Wall St. J. (Jan. 6, 2021, 11:53 P.M.).8 The action in Portland, though destructive and ominous, caused no similar threat to civilians. Accord United States v. Miller, No. 21-cr-119 (CBN), slip order at 3 (D.D.C. Dec. 21, 2021) (“Nor did the Portland rioters, unlike those who assailed America’s Capitol in 2021, make it past the buildings’ outer defenses.”). Given the “narrow[ ]” interpretation of “similarly situated,” Stone, 394 F. Supp. 3d at 31, the Court cannot say that the Portland defendants “committed roughly the same crime under roughly the same circumstances” as Judd, Khanu, 664 F. Supp. 2d at 32.

But even after having laid out reasons (but ignoring the legal problems introduced by Federal big-footing in Portland) why you cannot compare Portland and Jan6, McFadden — who, again, invited this challenge — concludes that he will sentence Jan6ers leniently because he’s sure they’re being mistreated. McFadden cites himself saying he’ll account for such disparities at sentencing in the very same paragraph where he denies discovery to find out whether there’s an obvious explanation for such claimed disparities.

None of this suggests that the distinctions Judd highlights are irrelevant for all purposes. “Disparate charging decisions in similar circumstances may be relevant at sentencing.” United States v. Griffin, — F. Supp. 3d —, 2021 WL 2778557 at *7 (D.D.C. July 2, 2021); cf. 18 U.S.C. § 3553(a)(6) (“the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct”). But on this record, those disparate outcomes fail to justify the discovery he seeks.

Then he cites Merrick Garland thinking he’s being clever.

Justice requires that “like cases be treated alike” and that “there not be one rule for Democrats and another for Republicans.” Merrick Garland, Remarks to DOJ Employees on His First Day, (Mar. 11, 2021).10 Otherwise, prosecutions risk becoming “so unequal and oppressive” as to deny the rights of all. Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886). Especially during moments of politically charged unrest, the Justice Department must strive for even-handed justice. Judd raises troubling questions about the Department’s adherence to this imperative in Portland. But for the reasons stated above, he has not carried his burden to justify further discovery into the Government’s prosecutions.

Make no mistake what this is: It is an otherwise law-and-order touting Federal Judge announcing, in advance, that he’s going to sentence Jan6ers, people who share his political views, leniently because — he claims, even while refusing to order discovery to prove or disprove his hypothesis — Jan6ers are being badly treated.

And in fact he has already been doing that. When he sentenced Danielle Doyle to two months probation and a fine in October, rather than the three years of probation DOJ sought, he said as much.

Trevor McFadden used this challenge to lay out, for at least the third time, his plan to let Jan6ers off easy, presumably including Judd and his co-defendants, accused of attacking cops over the course of hours. And in the course of doing so, he has suppressed the evidence showing that the disparity, in fact, pertains to overpolicing, not lenient prosecutions, in Portland.

Update: In June DHS provided Ron Wyden with responses to some of his questions about the deployment. They claim they can operate 1-3 blocks from the Federal property which could include all of these arrests.

Practically speaking, DHS personnel deployed to support FPS in protecting federal property in Portland, like the Hatfield U.S. Courthouse, dispersed crowds approximately one to three blocks away from the federal property to secure the perimeter, contain/mitigate fires, treat officer injuries, and otherwise reconstitute facility security.

As set forth above, 40 U.S.C. § 1315 does grant cross-designated law enforcement personnel certain authorities at a distance from federal property. For instance, a cross-designated officer or agent may make arrests without a warrant for any offense against the United States committed in the presence of the officer or agent, or for any felony cognizable under the laws of the United States if the officer or agent has reasonable grounds to believe that the person to be arrested has committed or is committing a felony. Similarly, such an officer or agent may conduct.

50 replies
    • Barb says:

      These are McFadden cases I have listed. There may be more, idk.
      21-cr-0684:  USA v. LASTER
      21-cr-0139:  USA v. PERT
      21-cr-0139:  USA v. WINN
      21-cr-0569:  USA v. BENTON
      21-cr-0569:  USA v. WEAD
      21-cr-0394:  USA v. MARTIN
      21-cr-0287:  USA v. SEEFRIED, Kevin
      21-cr-0287:  USA v. SEEFRIED, Hunter
      21-cr-0040:  USA v. MCCAUGHEY III
      21-cr-0040:  USA v. STEVENS
      21-cr-0040:  USA v. JUDD
      21-cr-0040:  USA v. QUAGLIN
      21-cr-0040:  USA v. MORSS
      21-cr-0040:  USA v. SILLS
      21-cr-0040:  USA v. MEHAFFIE
      21-cr-0040:  USA v. CAPPUCCIO
      21-cr-0040:  USA v. KLEIN
      21-cr-0040:  USA v. JUDD
      21-cr-0668:  USA v. CHAN
      21-cr-0506:  USA v. ERICSON
      21-cr-0037:  USA v. HALE-CUSANELLI
      21-cr-0694:  USA v. PRENZLIN, Brandon
      21-cr-0083: USA v FELLOWS, Brandon
      21-cr-0666:  USA v. FLOYD
      21-cr-0685:  USA v. FORTINEAU
      21-cr-0523:  USA v. ELDABBAGH
      21-cr-0520:  USA v. PRICE
      21-cr-0521:  USA v. WALDEN
      21-cr-0386:  USA v. BLAUSER
      21-cr-0277:  USA v. CORDON, Kevin
      21-cr-0269:  USA v. CORDON, Sean
      21-cr-0057:  USA v. RODEAN
      21-cr-0068:  USA v. CUDD
      21-cr-0068:  USA v. ROSA
      21-cr-0347:  USA v. PETROSH
      21-cr-0324:  USA v. DOYLE

      • emptywheel says:

        Right. While he has some interesting 1A cases–most notably Hale-Cusanelli but also the Seefrieds, and he has the dicey situation of Brandon Fellows, he hasn’t been getting Jan6 cases in a while. The most recent docket numbers for Jan 6 is 21-cr-748. So maybe he has found a way out of getting assigned these cases, which would be fine. It would leave him with the Tunnel assault, Prenzlin (an interesting misdemeanor), and Cudd (another misdemeanor whose sentencing will be interesting for other reasons, but by then she will have earned her probation, I think).

        Btw, you’ve got a non-Jan6 Price there. The Jan 6 Prices are cr-719 under Boasberg (with Ballenger), and the more important mj-464 still not indicted.

        So maybe McFadden has figured out a way to go on Jan 6 strike?

        • Barb says:

          That could be an error on the daily court calendar, which I regularly copy into a spreadsheet and where I write down notes on each case, but I have no comments noted so it might have been posted in error.

          Calendar: Tuesday, November 16, 2021
          Case Number and Title
          21-cr-0520:  USA v. PRICE Judge Trevor N. McFadden 10:00AM Plea Agreement Hearing

  1. klynn says:

    Thank you for this analysis. This is vital. I hope a number of sources pick this up.

    So, is it fair to say McFadden approves of injuring and killing cops under the efforts to block a certification of a Federal election while on Federal property?

    • bmaz says:

      “So, is it fair to say McFadden approves of injuring and killing cops under the efforts to block a certification of a Federal election while on Federal property?”

      Mmm no, that is a ridiculous question.

      • klynn says:

        IANAL. It seems he worked to twist Portland to justify lighter sentences as the justification to his decision.

        I’m not seeing how his decision honestly fits accountability for the charges.

        Again, IANAL.

        • emptywheel says:

          My guess is he doesn’t want to ruin his future opportunity for promotions by a future R President by having anything to do with these cases.

          The equivalent of, as a local official, obediently claiming the vote was stolen from Trump.

  2. Nord Dakota says:

    I am amazed by those who can keep both the forest and the trees (not to mention seeds, seedlings, fungi, ants and other things that creep on the earth) in clear view through all of this (when for me the universe spawned by Trump is fractal beyond comprehension). I am not one of those people, so my question is how many judges are hearing the Jan 6 prosecutions and what so far is the total number of prosecutions and apportionment of prosecutions among (between?) them?

    • bmaz says:

      As of December 14, 727 individuals had been charged for January 6 conduct. Sometimes individual judges have multiple cases because they are related, other times it is a random draw from the assignment wheel.

    • emptywheel says:

      To deal with the load of cases, they brought back senior judges, so including the new Biden judges there are ~22 judges presiding over cases. Some people with other duty — like Chief Judge Beryl Howell, and FISA presiding judge Rudolph Contreras — have lighter loads, and the seniors can choose to take as many or few cases as they want. The new Biden appointees are slowly taking on cases, but thus far have few. By my rough numbers, Amit Mehta and Tim Kelly have more defendants than they others, but that’s partly bc they have the 20-person Oath Keeper conspiracy and many of the Proud Boy cases, including a number of conspiracy cases, respectively.

  3. Rita says:

    Thanks for this enlightening discussion. You always “bring the receipts”.

    Perhaps the Jan. 6th Commission can do a public hearing to address this right wing meme to make the public record clear. Or, maybe AG Garland and FBI Director Chris Wray could do this as well. I don’t suppose the DOJ would just do peremptory challenges every time this judge gets assigned a Jan. 6th case.

  4. Riktol says:

    Could someone file an amicus brief providing this information (or more likely an edited version which doesn’t directly accuse the judge of being biased) to the court?
    Are there limits on who can file an amicus brief? My “research” tells me amicus briefs are often found in appeals, does that preclude them here? I didn’t see anything about them being exclusive to civil or criminal cases. I had a look on the DC district court website and they don’t have a filing fee for an amicus brief (side note: $402 just to file a complaint!).

    Also if DOJ is willing to dissemble in court to hide misdeeds committed under the previous administration, that doesn’t bode well.

    • bmaz says:

      Lol, such a submission would go exactly nowhere, and would never be accepted on the record. It is also silly. “DOJ is willing to dissemble in court to hide misdeeds committed under the previous administration, that doesn’t bode well.” Whut? Come on man.

      • harpie says:

        In JUDD’s case, here, DOJ is saying that they don’t know why the these three Portland cases were dismissed. It seem to me that that can’t possibly be true.

        I think that’s what Marcy is saying, here:

        DOJ’s claim not to know why these cases entered into a DPA is just as suspect as McFadden’s choice of a source for the crowd sizes in Portland.

        Marcy goes on to show that these three arrests JUDD and McFadden are comparing J6 to, were made off of government property…which [IF I’m understanding this all correctly] may end up bringing into question the whole TRUMP federal government response to those protests.

        • bmaz says:

          I believe that Marcy indicated that at least three of the cases were resolved by diversion agreements. Now it can be debated as to whether that was too lenient or not (frankly, I think diversion should be used more often, not less), but that is not covering anything up.

        • bmaz says:

          Theoretically it is possible. Here it would be ludicrous. Sentences have been within guidelines. People need to chill out and let the system work.

        • Charles Wolf says:

          Guidelines can get out of control as we recently witnessed in CO when they caused a truck driver to be tossed into a guideline-MoHole for 110 years.
          Fortunately, and under great public pressure, he was rescued by the Governor who reduced his stay to a reasonable 10 years.

        • bmaz says:

          Um, that was a state law case that has less than nothing to do with Federal Sentencing Guidelines.

          The two are apples and zucchini. And not only was it not “guidelines” in CO, it was mandatory sentencing provisions enacted by the state legislature. Don’t confuse the two.

        • Charles Wolf says:

          I was working under the premise that guidelines are sentencing provisions, mandatory or otherwise, State or Federal. The idea is to remove certain kinds/levels of Judicial discretion.

        • bmaz says:

          It can be confusing. But Fed guidelines are effectively not mandatory post US v. Booker. A judge can deviate to a lesser sentence (a downward departure) or above. In state court, far more than in federal cases, there are often hard minimums that are actually minimums.

        • emptywheel says:

          I’m saying that DOJ, institutionally, likely knows that they’re diverting a ton of the Portland cases bc Billy Barr’s DHS was policing with dubious legal justification. That’s a form of cover-up. But as you know, DOJ is not about to admit that DOJ charged people who were arrested by DHS officers acting illegally. These cases are being diverted SO THAT those details don’t come out in a trial.

        • bmaz says:

          Perhaps. But were I the DOJ, and wanted to cover up the arrests, I’d just dismiss the cases, not leave a paper trail via diversion agreements that require a statement of offense and admission to the pertinent factual basis.

        • emptywheel says:

          Sure. Except DOJ under Barr wanted big numbers of prosecutions. It was probably his highest priority, presumably with career advancement on the line.

          And then DOJ realized that those arrests were going to cause more headaches than prosecutions.

        • Peterr says:

          I think if DOJ were to have simply dismissed the cases, someone would have noticed. Far from covering things up, it would have only called more attention to it.

        • harpie says:

          DOJ: “although it is true that each case was eventually dismissed by the government for unknown reasons” [Marcy’s emphasis]

          Are these reasons actually “unknown” BY the government? [!!]
          If so, WHY are these reasons “unknown”?
          If not, why would they say that in this case?
          [Do they say that often?]

        • Riktol says:

          This is what I was thinking of with my comment about dissembling. I realised now that it was a bit disconnected from the first part.

    • Marinela says:

      Transparency for this case would be useful for the rest of us who wonder what really happened before he went in hiding when he faced the MAGA right wing protester and then when the police found him.

      Most of the times the transparency is not a given unless is demanded by the family members of the victim. Recall reading that his family members were MAGA crowd type. So not sure anybody from his family is seeking any answers. And the police and who was involved in hunting him down is happy to keep this matter quiet.

  5. Teddy says:

    Generally speaking, as a Portland resident, I can’t tell you how frightening it was to have those black-clad, anonymous, armed denizens roving our streets during that summer. No, not Antifa: these federal agents Marcy references, who were tasked with “defending the courthouse” and did so blocks away by chasing people all over the park blocks. Many Portland residents I know stopped going downtown, not because of Antifa *whose ranks were swelled, remember, by Mothers Against Fascism, people playing kazoos, and other frightening American expressions of free speech* but because you never knew as you turned a corner on any given sidewalk, whether you’d be confronted by stormtroopers. Even if you got to the theater, or the cocktail lounge, or whatever your destination might have been, upon leaving you might be snatched up by anonymous thugs in cars, taken to the police station and released hours later without charges, an arrest record, or any identifying numbers for your assailants.

    It wasn’t Antifa that made my town uninhabitable. It was Chad Wolf’s stormtroopers, who did his bidding in order to help him remove the Acting from his title.

    PS Why does this comment software capitalize Antifa?

    • Barb says:

      Tor your last question, Teddy. IDK. But isn’t the proper pronunciation anti-FA? That’s how I always pronounce it to myself. Saying Antifa signifies a group, an organization when it’s not. anti-FA are people fighting against fascism. Just my two cents.

      • Dave says:

        There’s the good ol’ Antifa is just an idea, not a group. Absolute LIE. Just pure, unadulterated bs.

        Just as much bs as “Even if you got to the theater, or the cocktail lounge, or whatever your destination might have been, upon leaving you might be snatched up by anonymous thugs in cars”

        It’s amazing how dishonest some of you are.

        [Welcome to emptywheel. First, please use a more differentiated username when you comment next as we have several community members named “Dave,” “David,” or some variant. Second, ad hominem attacks on community members aren’t acceptable here; you should acquaint yourself with our community guidelines. Third, if you make a claim, back it up; do NOT claim [subject] is false without citations from reliable sources. /~Rayne]

  6. greengiant says:

    The images of sometimes lethal weapons used with rat fucking spin of highly trained marksman would not have aimed to shoot him in the forehead while he stood in the street while holding a speaker over his head ain’t ever going away.
    Nor the image of Barr’s storm troopers running through the streets of Portland knocking down bystanders as they chase someone on a skateboard. 10th amendment and monuments act indeed.

    Literally a called for play to the sadistic middle america to Gitmo waterboard anyone with colorful clothing, body piercings, non standard sexuality or doing any acts of protest.

  7. Lawnboy says:

    Re: “federal big-footing “. (In Portland no less)

    This is so confusing and convoluted, I can’t keep it sorted.
    Thank Dog for Marcy to make sense of this bowl of Spag-yeti.

    All the best for all in 22.
    May the spirits and puns flow.

  8. graham firchlis says:

    This is McFadden’s straddle?

    He had to rule against Trump on the taxes, or look like a complete tool. Going easy on the poor mistreated J6rs, the real victims here of political persecution, helps rewrite the history and makes amends for his taxes ruling, keeping his hopes for DC Circuit and even SCOTUS in alive come another Republican president.

    Elections have consequences. Tangential diatribe:

    One reads and hears a great deal about how “The Democrats” need to mobilize better, 50 state every district all the time. Great idea. Where do the people, the bodies on the ground come from? DC? Selected by the Democratic Party apparatus? They shouldn’t, not if local citizens want to be sure they are heard.

    Grassroots. Hear that a lot too, seen much less. That’s where the effort has to come from. Every precinct, every state. GOTV.

    Here in CA our independent commission will hand us 100% D retention, and a near certain pickup of 3 – maybe even 5. Local resources are already mobilizing in those few swing districts. (We lost a seat overall, so the net in the House will be +2 to +4.)

    The other big state redistricting looks defensible for Dems, IF local support starts now and produces candidates who can win the general. There are some safe districts that could elect a more progressive rep, but in marginal districts the general is all that matters. It is purely a numbers game; we can hash out a path to progress if the Dems retain power, and we cannot if they aren’t.

    If the best candidate is the mangiest flea bitten yella dog D ever, I say put a collar on and lead it to office. When we have more numbers, there’ll be time for an upgrade.

    If the rest of you lot in the other 49 can just net out even, we can hold the House.

    The Senate looks even better, with a possible +2 if Georgia holds. The same local mobilization effort for the House will translate directly to Senate races and control of judicial appointments. [the tangent]

    GOTV. Start now. Only you can save the nation. Thank you in advance.

  9. pdaly says:

    Judge McFadden: “Especially during moments of politically charged unrest, the Justice Department must strive for even-handed justice.”

    Does the Court assume (or care?) when handing out equal justice that any two groups demonstrating unrest are equally rational/irrational?

    Those demonstrators triggered by very real facts (death of Floyd, mistreatment at the hands of law enforcement) are more rational to me than those acting in defense of a very stupid Big Lie. The latter are more dangerous especially if they cannot be deprogrammed.

    Do Courts read Voltaire? “Certainly anyone who has the power to make you believe absurdities has the power to make you commit injustices”

    • Dave says:

      “Those demonstrators triggered by very real facts (death of Floyd, mistreatment at the hands of law enforcement) are more rational to me than those acting in defense of a very stupid Big Lie. ”

      An entire summer, arguably a year of near continuous ‘protests’ during which entire city blocks were burnt and looted, multiple murders occurred, countless officers injured, and potentially billions of dollars in damage is more rational?


  10. Leoghann says:

    I have a couple of questions.

    I can see how DOJ is between a rock and a hard place in this situation that McFadden has helped create. They can either admit to errors in the past, albeit under another AG of a different party, or accept slaps on the wrist for violent Jan 6 defendants. Should they decide in favor of admitting charging errors in Portland, is it possible to explain the disparity in the handling of Portland and Capitol defendants in future filings? It seems like, if McFadden’s MAGA clerk can make political arguments, then prosecutors should be able to defend against them.

    In the update at the end of the post, isn’t the DHS statement simply their interpretation of the law, and a statement of how they prefer to enforce it? They certainly aren’t a lawmaking body. And if their statement is an interpretation, can DOJ (or someone) issue a clarification?

  11. Dave says:

    Did anyone even read that article?

    An armed, violent siege. Explosives, attempts to blind officers, an entire building coated in graffiti, trash everywhere

    and some idiot is quoted saying something about not being there to do damage.

    Bunch of absolute hypocrites. And you focus on the exaggerated number of people there. Hundreds or dozens of people rioting nightly for months is PERFECTLY fine by you self-proclaimed defenders of democracy.

    Again, disgusting.

    • Rayne says:

      Hey. We get your point. You don’t agree with the post. You also failed to note how much of the damage done in Portland and other locations across the US like Minneapolis after the murder of George Floyd were both the work of agents provocateur and incited by both law enforcement and more provocateurs.


      There were many more examples caught on camera and shared in real time. The public also saw plenty of examples of police overreach and abuses of protesters’ rights.

      The situation in Portland was further exacerbated by an unlawfully appointed DHS director. Charges against many of the Portland protesters ended up dismissed.

      The majority of charges against protesters in Portland were misdemeanors, and about half of the charges were dismissed, compared to the January 6 insurrection which resulted in charges like:

      18 U.S.C. § l752(a)(l) Entering and Remaining in a Restricted Building
      18 U.S.C. § 1752(a)(2) Disorderly and Disruptive Conduct in a Restricted Building
      18 U.S.C. § 231(a)(3) Civil Disorder
      18 U.S.C. § 1512{c)(2) Obstruction of an Official Proceeding
      40 U.S.C. § 5104(e){2){A) Violent Entry and Disorderly Conduct in a Capitol Building
      40 U.S.C. § 5104(e)(2)(G) Parading, Demonstrating, or Picketing in a Capitol Building

      The key charge right there in the middle in bold is the entire point of January 6 which separates any protest in Portland and other cities from the attack on the Capitol Building: the insurrection was meant to obstruct government officials’ ability to carry out their duties in order to stop the transfer of power. Not every participant will be charged with that or with conspiracy to obstruct government proceedings, but no protesters in Portland will see such a charge.

      In short, the point of January 6 was to overthrow the government. Just a wee bit of a difference from angry protests against police brutality.

    • bmaz says:

      You have made your point, and quite belligerently so. Give it a rest. And, no, there is no such firm “antifa” entity, that is a ginned up bunch of nonsense the right wing used for propaganda purposes. You, just as the right wing and insurrectionists pray you will, buy into that ginned up nonsense. When Rayne said:

      “You also failed to note how much of the damage done in Portland and other locations across the US like Minneapolis after the murder of George Floyd were both the work of agents provocateur and incited by both law enforcement and more provocateurs”.

      She is exactly right. Not to mention the actions of the police and illegally inserted national guard. I would also refer you to the comment above by our colleague Teddy, who is a long time Portland resident, and saw it all up close and personal. The situation on the ground was far different than you hyperventilate about.

      Don’t roll in yelling at us, that is not going to work here. Your failure to describe who was doing what in Portland, and your almost comical hyperbole over it, makes your position hard to square with the content here you are commenting on.

      Secondly, you have been repeatedly asked to differentiate your screen name, and apparently refuse to do so. Until you do, and calm down a little, no more of your comments will be approved. Were I you, I would heed Rayne’s words and admonitions.

Comments are closed.