Trevor McFadden Rewards a White Lady for Endorsing a Revolution and Bragging about Violence against Cops
Yesterday, Trevor McFadden blew off DOJ’s request that Jenny Cudd be sentenced to jail time as well as DOJ’s request for a continuance of Cudd’s sentence so DOJ can determine what to do given that Cudd reneged on her statement of offense. Instead, the Trump appointee sentenced Cudd to two months of probation and a $5000 fine. Given the other sentences for January 6 defendants and even McFadden’s other sentencing decisions, it’s hard to view this sentence as anything else but a reward to Cudd for endorsing a revolution and refusing to fully cooperate with the government.
I could not listen in on the sentencing hearing. It was held in person, and McFadden — perhaps because he would like to hide his naked partisanship from the public — doesn’t turn on his public line for in-person hearings. At least forty other people besides me tried to call into this hearing.
But according to Jordan Fischer, the entire hearing was about whether those — like Cudd — who participated in a violent attempt to interfere with the peaceful transfer of power are being treated differently than Portland protestors arrested blocks away from Federal property. Cudd even publicly stated that she wished the effort to interfere with the vote certification had succeeded, basically a public boast that she wanted to obstruct the an official proceeding, the original crime with which she was charged.
Cudd’s attorney, Marina Medvin, accused the DOJ of “gamesmanship” and suggested prosecutors were recommending jail time not because of her individual actions, but because of her political views. She dismissed Cudd’s social media statements as “drunken tirades” and repeatedly drew comparisons to how federal prosecutors have charged, or not charged, protestors in Portland and during the confirmation hearings for Supreme Court Justice Brett Kavanaugh. McFadden was the right audience for those arguments, having repeatedly made the same comparisons himself during other hearings in Capitol riot cases.
Before delivering his sentence, McFadden said he didn’t believe in “aggregate justice” and that he found the DOJ’s sentencing recommendation for Cudd “disproportionate” from others with similar conduct.
“It does feel like the government had had two different standards here, and I can’t abide by that,” he said.
Cudd herself delivered a short statement promising to continue to fight for “free, fair and transparent elections” and saying she’d suffered financial and social consequences from her arrest, including threats against her and her business. She also expressed regret — that the challenge to certification of electoral votes on Jan. 6 was disrupted.
“I believe we would have a very different country if that debate process had not been interrupted that day,” Cudd said.
The reason we can be absolutely certain that McFadden rewarded Cudd because she doubled down on the glee with which she interfered with the vote certification (aside from his repeated explicit promises to sentence January 6 defendants lightly) is because we can compare her sentence with that of her co-defendant Eliel Rosa, who is different from Cudd in five ways: Rosa is an immigrant from Brazil, he pled guilty to a less serious misdemeanor than Cudd (parading versus entering restricted grounds), he not only fully cooperated with the investigation but actually turned himself in, unlike Cudd he was not in communication with the Proud Boys, and unlike Cudd, he is not known to have endorsed revolution the night before the riot.
McFadden sentenced Rosa to a longer period of probation than he did Cudd.
As the government has repeatedly described, after Cudd went to the rally on January 5, she came back to her hotel room at the Willard Hotel and endorsed a revolution.
On January 5, 2021, Cudd posted a video to social media in which she said, “a lot of . . . the speakers this evening were calling for a revolution. Now I don’t know what y’all think about a revolution, but I’m all for it . . . . Nobody actually wants war, nobody wants bloodshed, but the government works for us and, unfortunately, it appears that they have forgotten that, quite a lot. So if a revolution is what it takes then so be it. I don’t know if that is going to kick off tomorrow or not. We shall see what the powers that be choose to do with their power, and we shall see what it is that happens in Congress tomorrow at our United States Capitol. So either way I think that either our side or the other side is going to start a revolution.” [my emphasis]
The next day, as she was marching to the Capitol in a bulletproof sweatshirt (reflecting pre-planning for violence), she stated that she planned to convene with the Proud Boys who were — at that moment — kicking off a violent attack on the Capitol.
The following day, on January 6, 2021, Cudd posted about marching toward the Capitol. According to a newspaper in Texas, at approximately 12:30 p.m., Cudd posted a live video to social media in which she stated that she was about 3 miles from the Capitol, that she intended to convene with the Proud Boys2 at the Capitol, and that she was wearing a bulletproof sweatshirt.
2 Cudd appears to have been communicating with a member of the Proud Boys on and around January 6; however, the government is not aware of any additional connection Cudd has to the group.
The government even cited Cudd’s boasts about the violence used against cops.
“So we get to the Capitol and some of the patriots had already broken down all of the barricades, and they had literally ripped out the fence . . . Pushing and pushing and pushing. And we got the police to back off. So we get up there and the scaffolding that they had put up for the inauguration, there were people that were starting to climb it. We had to scale a wall to get there. There were people that were starting to climb the scaffolding. And we just pushed and pushed and pushed and pushed and yelled ‘go’ and yelled ‘charge’ and on and on and on. We just pushed and pushed and pushed, okay? And we got in. We got up the top of the Capitol. There was a door that was open. We went through the door. And we were inside
In October, McFadden sentenced Rosa to twelve months of probation (he did not fine Rosa, if I recall correctly, because Rosa already lost his job as a result of his role in the insurrection).
Yesterday, Trevor McFadden rewarded Rosa’s co-defendant by giving her just two months of probation, as compared to Rosa’s year of probation.
With that sentence, then, McFadden rewarded a white lady for attacking democracy.
Update: On Twitter, Cudd claimed that my factual observation about the way McFadden coddled her arises out of white guilt.
Ted Cruz can argue with anyone he wants about whether babies are racist, but I think things are pretty clear about McFadden.
Note, please that McFadden is 47 years old. Actuarially speaking, we have years more of this to look forward to. Fortunately, it’s not like the DC circuit is filled with cases featuring defendants who are people of color. Oh, wait . . .
He is 43.
Thanks.
Need. Moar. Coffee.
Thanks for pointing out McFadden’s youth. That is a deliberate tactic by Republicans: by appointing young judges, they maximize the length of their lifetime appointments & minimize opportunities for Democrats to appoint judges.
Perhaps that’s why Republicans are so ‘pro-life’…
The younger the better…
I’m sure Matt Gaetz would approve…
I’m waiting for the first pre-natal judicial appointment.
What’s crazy is Republican senators have been excoriating KBJ over her sentencing record ALL WEEK! They really seem to have an issue with downward departures and yet…
There were a couple of other judges that were A-OK with Tom Cotton who also drastically downward sentenced kiddie porn purveyors, which was pointed out to him. Of course, they weren’t POCs either but good ‘conservatives’.
I guess Josh Hawley should be grilling McFadden whether he regrets his sentence (we know the answer)
As much fun as it is, pointing out Republican hypocrisy has gotten us nowhere and will get us nowhere. They, and their voters, don’t give a shit about hypocrisy. Much more useful to point out what they are trying to accomplish.
Republican senators tried, and succeeded, in getting headlines with KBJ and child abuse in them. They created a sensationalist controversy, got covered, and damaged KBJ’s reputation.
Very true and an absolute indictment of our modern day media/journalism/body politic. Just makes me want to puke.
Ew,
Emptywheel.net reports:
“Yesterday, Trevor McFadden blew off DOJ’s request that Jenny Cudd be sentenced to jail time as well as DOJ’s request for a continuance of Cudd’s sentence so DOJ can determine what to do given that Cudd reneged on her statement of offense. Instead sentenced Cudd to two months of probation and a $5000 fine. Given the other sentences for January 6 defendants and even McFadden’s other sentencing decisions, it’s hard to view this sentence as anything else but a reward to Cudd for endorsing a revolution and refusing to fully cooperate with the government.“
Judge (White Nationalist) TMcF appreciates his defendants articulated argument here:
“January 5, 2021, Cudd posted a video to social media in which she said, “a lot of . . . the speakers this evening were calling for a revolution. Now I don’t know what y’all think about a revolution, but I’m all for it . . . . Nobody actually wants war, nobody wants bloodshed, but the government works for us and, unfortunately, it appears that they have forgotten that, quite a lot. So if a revolution is what it takes then so be it.“
This judicial outcome is on a curve and tfg’s judge delivered. Please vote and register two other voters to prevent this viral outcome from replicating.
Since I know very little about this I need to ask: Is there no appeal or review process that DOJ can pursue for a sentencing decision like this?
I was quite impressed yesterday by Ketanji Jackson-Brown’s clear explanation of the importance of proportional equity in sentencing. This decision by McFadden appears to have violated that principal pretty badly. Is that just the end of it?
I did a google search and the first response is this:
“Although prosecutors are not able to appeal a not guilty verdict, they are able to appeal when a judge hands down a criminal sentence that they do not believe meets the legal standards for what the law should impose for your particular conviction.”
https://theappellatelawfirm.com/blog/government-seeks-appeal-criminal-sentence/#:~:text=Although%20prosecutors%20are%20not%20able,impose%20for%20your%20particular%20conviction.
and this:
The defendant may appeal a guilty verdict, but the government may not appeal if a defendant is found not guilty. Either side in a criminal case may appeal with respect to the sentence that is imposed after a guilty verdict.
https://www.uscourts.gov/about-federal-courts/types-cases/appeals
Thanks. It took a while before I checked back, but your reply and the information is much appreciated. I guess it is a question of whether it would be worth the time and expense to pursue.
The whole comparing [MAGA] J6 to [BLM] Portland is SO BOGUS it makes my head hurt.
Marcy wrote about that here:
https://www.emptywheel.net/2021/12/30/trevor-mcfadden-uses-stormtroopers-to-justify-a-promise-to-let-jan6ers-off-easy/
Also: https://www.emptywheel.net/2021/10/05/david-judd-claims-hes-not-being-treated-as-well-as-the-teenager-who-got-murdered/
CUDD, et. al. are paying close attention to what Marcy says,
and attempting to set up straw men:
https://twitter.com/emptywheel/status/1506975021947830278
8:43 AM · Mar 24, 2022
I don’t know what it felt like in Rome just prior to Julius Caesar crossing the Rubicon but the lack of repercussions for outrage shows the critical nature of dependency on norms and how fragile democracy is when powerful groups are willing to ignore decency.
I also see a strong resemblance between the fall of the Roman Republic and USAmerica these days,
Not at all. Prime example: Where are the strong victorious war leaders?
That doesn’t mean that our Republic today isn’t in grave danger. It just means that the danger is not of the same kind as what befell the Roman Republic 2,100+ years ago.
I’ll second that!
IANAL.
Her display of no remorse and doubling down with glee deserves an equal doubling down of legal accountability. Is any further holding her to account possible?
Really liked this reply in EW’s thread:
https://twitter.com/PJEvans66030270/status/1506991970358480902?
“If she really believed in personal responsibility, she’d have pleaded guilty. Or not gone to DC at all.”
I don’t think much of people like her.
In 2015 I travelled by car through the Midwest. One morning in the parking lot of a motel I met a man who, after he heard I was from the Netherlands, said: “I really pity your country”. It turned out he thought the Muslims had taken over the government and we were all suffering under their terror. We had a longer chat and I could reassure him, a little, maybe. Reading this morning Jenny Cudd’s malicious tweets directed at Marcy Wheeler I thought: “I really pity your country.”
Sunlight is the best disinfectant. I hope the transcript of this hearing will be posted on Pacer. I have always felt that a project/website should be created for judges like this, monitoring there performance and bad acts with links to CourtListener etc. For example, one can compare what the judge says in diatribes with the actual competent evidence in the record. However, some of my friends in smaller jurisdictions have seen lawyers disciplined from such criticism of judges. The attorneys in cases are often the best sources for judges engaging in BS. I was wondering of Bmaz could comment on this.
Agree. Doubt the transcript makes it to Pacer unless somebody buys it and attaches it to a pleading.
Would it cost too much to take up a collection? Could a lawyer like you then attach it to a pleading?
Just a thought.
No, I have no standing to file in that case. Theoretically, any person can buy a transcript from the court reporter, but they can be pretty expensive.
Is there an easy way to find out what it would cost?
… obstruct the an official …
thanks, marcy.
i hope KBJ’s whole family stays safe.
Although Judge McFadden has appeared to be less partisan than Judge Nichols in some of his rulings, the Portland vs Capitol (unequal) comparison seems to be a stalking horse for him. These cases of nonviolent insurrectionists really put his prejudices on display. And he seems unconcerned about his transparency; he’s not exactly deep waters.
As far as Jenny Cudd is concerned, it’s easy, and very discomfiting, to see motivations for his behavior. She’s an attractive woman of his cohort (she’s 38, he’s 43), has a very strong, engaging personality, considerable personal wealth, and is a proud Trumpster. Just the type defendant one could expect to go light on.
Cudd is already a celebrity in her home town, which happens to be where I was born and raised. She has been the subject of a new article every day for the past two weeks in her local newspaper. She is owner or part owner of several successful businesses, and her status as a MAGAt hero will only increase her success.
I don’t intend to contribute to that, and this is the last time I intend to write her name. I know it irritates bmaz when some of us refer to certain politicians and the Republican Party with derogatory nicknames. But I refuse to give any of those people any more relevance, or the undeserved respect of calling them by name.
What is a bulletproof sweatshirt?
Kevlar and ceramics.
About US$325 to start, more if you want a hoodie which seem to go up to about US$600.
About US$325 to start, more if you want a hoodie which seem to go up to about US$600. (I’ll not link ’em, but purveyors of same were searchable on duckduckgo.) Altho’ there are some US$35 novelty ones that just have “Bulletproof” printed on ’em …
Thank you for affirming these are a real thing. I’m now wondering whether someone responded a true niche need (e.g., law enforcement/military), saw a potential market among Ammon Bundy types, or just conducted an experiment.
The intersection of sweatshirt fabric, which is typically draping knit, with bulletproofing tech poses engineering challenges I would have thought too steep. Guess I was wrong.