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After Describing DOJ’s January 6 Language as “Schizophrenic,” Judge Beryl Howell Imposes a Sound Baseline Sentence

In the sentencing hearing for Jack Griffith yesterday, Beryl Howell spent several hours berating the government for the way they’ve charged the January 6 cases. Here’s Zoe Tillman’s coverage of the hearing.

Howell repeatedly expressed puzzlement at how the Justice Department was managing the Jan. 6 cases, especially for defendants charged solely with misdemeanor crimes. She questioned prosecutors using “scorching” rhetoric to describe the severity of the attack on the Capitol while also using words like “trespass” to describe what some defendants, including Griffith, did that day. She described the government’s brief as “almost schizophrenic.”

She also pressed prosecutors to explain why the government was offering plea deals for low-level charges that limited judges’ options at sentencing, especially when prosecutors had articulated that one goal of these cases was to prevent a similar postelection attack on the peaceful transfer of power in the future.

“This is a muddled approach by the government,” she said. It is “no wonder,” she said, that some people “are confused about whether what happened on Jan. 6 was a petty offense of trespassing or shocking criminal conduct that represented a grave threat to our democratic norms.”

Howell’s complaint about the seeming inconsistency between DOJ’s rhetoric on the attack itself and the charges being filed may stem, in part, from the fact that Howell has a greater proportion of misdemeanor defendants than other judges, and so doesn’t see how there’s a continuum among defendants. Of the 30-some defendants whose cases she has, Grady Owens and James McGrew are two of her only more serious cases, plus Nick Ochs and Nick DeCarlo from the Proud Boys.

But her complaint about the way DOJ has tied judges’ hands on sentencing raises an important point. She worried about whether DOJ will really be able to collect restitution payments, given that that normally happens as part of supervised release and these class B misdemeanors don’t permit that (something discussed at length yesterday). And ultimately, she decided that because that’s all Griffith was asked to plead to, she wouldn’t sentence him to jail time, as DOJ had requested.

That said, several minutes after she issued her ruling for a 3 month probationary period, she added a term of supervised release that confused me and others covering it. I think the sentence she did impose — three months in home confinement with a GPS, as part of three years of probation — is not a bad one for those DOJ charges with misdemeanors.

Defendant sentenced on Count 5 to serve a term of thirty-six (36) months Probation which includes a special condition of 90 days of home confinement; Defendant ordered to pay a $10.00 special assessment and restitution in the amount of $500.00; imposition of a fine waived. Government’s oral motion for the dismissal of Counts 2, 3, and 4, granted as to Defendant JACK JESSE GRIFFITH. Bond Status of Defendant: Defendant placed on Probation.

Howell focused closely on deterrence — and argued that sentences without jail time will not adequately deter further events. But Griffith will still face a three month period where his conditions of release are more harsh than they currently have been, outfitted by a GPS. And by sentencing him to an extended probationary period, Howell has limited the degree to which Griffith can engage in armed insurrection.

As it is, the courts are overwhelmed with the number of January 6 defendants. Even without the legitimate challenges to the way DOJ has used obstruction in this case, it’s unlikely they would have been able to charge more felonies. This sentence is a way to limit the possibility Griffith will rejoin an insurrection without submitting him to radicalization in prison.

And as of right now, between Tanya Chutkan’s jail terms and Trevor McFadden’s brief probation terms, the misdemeanor sentences are disconcertingly all over the map. I’m hopeful that this sentence will serve as a better guideline going forward.

There’s one more detail of yesterday’s hearing worth noting. James Pearse, the AUSA in charge of most of the legal issues in this investigation, gave Judge Howell a detailed explanation of how DOJ had come up with the $500 restitution amount (with $2,000 for felony defendants). He described that the Architect of the Capitol came up with a damages amount in May, and DOJ spread that over the estimated number of people who had entered the Capitol. He described their estimate at that point was 2,000 to 2,500.

This means DOJ has come up with the same estimated number as the Sedition Hunters did (as described in this Ryan Reilly piece; click through for links), working off an estimate of flow rate of people coming into the Capitol.

In the weeks after the attack, law enforcement officials estimated that 800 people had entered the Capitol. That number stuck around in media coverage for months, becoming a benchmark against which the FBI’s progress has been measured. The 800 figure has been mentioned in stories as recently as this week.

In reality, as online sleuths have discovered over the past several months, that’s only a fraction of the scope of criminal activity that day. A HuffPost analysis of public-facing data on the Capitol attack, combined with the findings of online investigators working under the #SeditionHunters moniker, shows that the total number of Jan. 6 participants who could face charges if identified tops 2,500.

Federal investigators have quietly ticked up their own estimate. In a budget request earlier this year, the FBI told Congress that “approximately 2000 individuals are believed to have been involved with the siege.” Law enforcement officials did not dispute HuffPost’s 2,500 figure.

That means federal authorities have charged about 25% of the suspects who could face criminal charges for their conduct on Jan. 6. At the current pace, it would take federal authorities until early 2024 to bring cases against 2,500 defendants. And some of the easiest cases to bring, the “low-hanging fruit,” have already been charged.

Online investigators, who have been responsible for identifying countless Jan. 6 defendants and will play a role in dozens of forthcoming FBI cases, have counted more than 2,000 individuals they say breached the Capitol building. These sleuths refer to the people they say they spotted inside the Capitol as “Sedition Insiders,” and have collected the highest-quality image they’ve found of each rioter (even if that photo was snapped while the suspect was outside the Capitol).

When Pearse offered this number, he explained that DOJ didn’t want to explain how it came up with this number — which led me to quip that maybe they had used the Sedition Hunter number. That’s not possible, though, as the calculation predates it. It’s likely, then, that this number relies (at least partly) on the number of trespassers identified using cell tower dumps, which reflect all the phones and Google access, less those who had a legal reason to be in the Capitol.

Ultimately, of course, this means that restitution won’t pay for all the damage to the Capitol, as prosecutors seem to be limiting further misdemeanor arrests to those who serve an investigative purpose (such as to obtain their cell phone for evidence against others).

Unless, of course, prosecutors ultimately move towards holding organizers accountable for the damage their mob incited.

Whatever the case, DOJ continues to fall short of providing compelling explanations of how all the parts of the riot fit together in either public statements or court filings. And on that level, Judge Howell’s complaint deserve closer attention from DOJ.

The Hundred-Plus January 6 Defendants Accused of Assault

Yesterday, Merrick Garland marked two milestones in the January 6 investigation: 500 arrests, of which 100 were for assaulting police.

The Department of Justice reached several benchmarks in our investigation into the January 6th attack on the U.S. Capitol.

We have now crossed the threshold of 500 arrests, including the 100th arrest of a defendant on charges of assaulting a federal law enforcement officer. This morning, we arrested our first defendant on charges that include assaulting a member of the news media.

I could not be more proud of the extraordinary effort by investigators and prosecutors to hold accountable those who engaged in criminal acts that day. Particular credit goes to those serving as prosecutors and agents in Washington, D.C., as well as those in FBI field offices and U.S. Attorney’s Offices across the country, and with the Department’s National Security Division.

Our efforts to bring criminal charges are not possible without the continued assistance of the American public. To date, we have received their more than 200,000 digital tips.

I assure the American people that the Department of Justice will continue to follow the facts in this case and charge what the evidence supports to hold all January 6th perpetrators accountable.

I’ve been tracking the charged assaults (and a few related crimes). Here’s my list, which includes several people who really resisted arrest (but got charged under 18 USC 111). Note this list also tracks how the FBI identified the defendant, which shows that FBI has been relying on “Be On the Lookout” photos to identify assailants. As of right now, all these defendants have pled NOT guilty and are assumed innocent. [fixed typo]

As you read this list, keep in mind that FBI has released 410 BOLOs, most for assault, and well over 200 of those people remain at large. And of course, the FBI has not yet apprehended the pipe bomber.

  1. Daniel Page Adams, whose arrest affidavit describes engaging in a “direct struggle with [unnamed] law enforcement officers” (his cousin, Cody Connell, described the exchange as a “civil war”). Tip SM
  2. Zachary Alam, who pushed cops around as he was trying to break into the Speaker’s Lobby. BOLO 79
  3. Michael Alberts, who was arrested for gun possession the day of the riot but who had an assault charge added in a superseding indictment
  4. Wilmar Alvarado, who pushed cops in the mob trying to get in from the West Terrace. BOLO 65
  5. John Anderson, who after taking two riot shields from cops, needed their assistance after getting maced.
  6. Thomas Ballard, who used a police baton and threw a table in the Lower West Terrace. BOLO 325
  7. Julio Baquero, who resisted police efforts to empty out the Rotunda. Tip
  8. Logan Barnhart, who pulled one of the cops out of the Capitol.
  9. Aiden Billyard, who joined the Air Force after being caught on video spraying a cop with suspected bear spray. Sedition Hunters
  10. Craig Bingert, who allegedly helped shove cops with a barricade. BOLO 105
  11. Tim Boughner, accused of pepper spraying a cop. BOLO 337
  12. Brian Glenn Bingham, who scuffled with two cops after Ashli Babbitt got shot. BOLO 93
  13. David Blair, who poked a cop with a lacrosse stick with a Confederate flag attached. Onsite arrest
  14. Michael Brock, who hit two cops with a four-foot rod. BOLO 319
  15. Nicholas James Brockhoff, who sprayed a fire extinguisher from the Terrace at cops. BOLO 255
  16. Benjamin Burlew, who participated in a 6-person assault on an AP journalist.
  17. Jamie Buteau, whom surveillance video showed throwing chairs at cops several times in the Capitol. (BOLO 188)
  18. Alan Byerly, who allegedly beat up a cop and then beat up an AP cameraman. BOLO 193
  19. Daniel Caldwell, who was filmed macing 15 cops. SM
  20. Steven Cappuccio, who pulled Daniel Hodge’s gas mask and beat him with his own baton. BOLO 123
  21. Matthew Caspel, who was filmed charging the National Guard. Tip SM
  22. William Chrestman, who is accused of threatening a cop as Proud Boys pushed their way past the original line of defense (charged with 18 USC 115). NM
  23. Reed Christensen, who was videotaped swinging at cops. BOLO and video 191
  24. Luke Coffee, who was videotaped beating several cops with a crutch. Tip SM and BOLO 108
  25. Cody Connell, who with his cousin was in a direct confrontation with cops. Tip SM
  26. Lance Copeland, who admitted to fighting with cops on the barricades.
  27. Matthew Council, who was arresting for shoving cops the day of the riot.
  28. Mason Courson, accused as part of a group that dragged cops from the Capitol and beat them. BOLO 129
  29. Kevin Creek, who was filmed hitting and kicking officers on the West Terrace. BOLO 296
  30. Bruno Cua, who was filmed shoving a cop to be able to get into the Senate. Tip LE
  31. Matthew DaSilva, who fought over shields with cops in the Lower West Terrace. BOLO 230
  32. James Davis, the Proud Boy with a big stick who charged some cops.
  33. Nathan DeGrave, whom security cameras caught threatening to fight cops. Network Sandlin
  34. David Dempsey, a Proud Boy with a history of assaulting anti-Trump protestors who used a crutch to assault police in the Tunnel. Sedition Hunters
  35. Robert Dennis, alleged to have assaulted officer JS on the terrace
  36. Timothy Desjardins, alleged to have beat police in the tunnel with a table leg. BOLO 348
  37. Michael Dickinson, accused of throwing things at cops. Tip SM
  38. Josh Doolin, who is part of Johnny Pollack’s cell that assaulted multiple cops. Network Pollack
  39. Michael Eckerman, who pushed an officer down a small flight of stairs, thereby opening a new hallyway. Tip anon
  40. Daniel Egdvedt, a large man who took swipes and grabbed at several officers as they tried to remove him from the Capitol. BOLO 76
  41. James Elliott, who goes by Jim Bob, is a suspected Proud Boy accused of beating cops with a flagpole.
  42. Scott Fairlamb, who was caught in multiple videos shoving and punching officers (one who whom is identified but not named); Cori Bush has said she was threatened by him last summer. Tips, including SM
  43. Alan Fischer, a Proud Boy involved in the Tunnel assault who also threw chairs and a traffic cone at cops.
  44. Joseph Fischer, a cop who got in a tussle with another cop. Tip SM
  45. Kyle Fitzsimons, who charged officers guarding the doorway of the Capitol. BOLO 139
  46. Michael Foy, a former Marine who was caught on multiple videos beating multiple cops with a hockey stick. Tip SM
  47. Kevin Galetto, who allegedly knocked an MPD officer to the ground in the Tunnel. BOLO 146
  48. Robert Giswein, who appears to have ties to the Proud Boys and used a bat to beat cops. NM
  49. Vitali Gossjankowski, who was interviewed about whether he had tased MPD officer Michael Fanone, causing a heart attack; instead he was charged with assaulting CPD officer MM. BOLO 98 — with a second one mentioned
  50. Daniel Gray, who got into several confrontations with officers inside the Capitol, including knocking down a female cop. Tip SM
  51. Brian Gunderson, charged with assault while committing a felony on a superseding.
  52. Jimmy Haffner, accused of breaching the cops defending the East doors using pepper spray. Network Nordean
  53. Tom Hamner, involved in an attack using a Trump sign while wearing a “Guns don’t kill people, Clintons do,” sweater.
  54. Alex Harkrider, who after being filmed fighting with police at the door of the Capitol, posted a picture with a crowbar labeled, “weapon;” he was charged with abetting Ryan Nichols’ assault. Tip SM
  55. Richard Harris, who assaulted a journalist in Oregon weeks before threatening cops, Nancy Pelosi, and Mike Pence during the riot.
  56. Uliyahu Hayah, who was in the vicinity of Ashli Babbitt’s death and shoved a cop on his way out. NM
  57. Albuquerque Cosper Head, accused of assaulting Michael Fanone.
  58. Dillon Herrington, who threw a 4X4 at cops, then threw a barrier. Sedition Hunters picture
  59. Joseph Hutchison, who is part of Johnny Pollack’s group, but who was caught via his own BOLO. BOLO 320
  60. Emanuel Jackson, whom videos caught punching one officer, and others show beating multiple officers with a metal baseball bat. BOLO 31
  61. Joshua James, an Oath Keeper accused of shoving a cop.
  62. Shane Jenkins, alleged to have used a crowbar to break in a window, later threw things including a pole, a desk drawer, and a flagpole at cops.
  63. Douglas Jensen, the QAnon who chased Officer Goodman up the stairs, got charged with resisting him. NM, BOLO 10
  64. Justin Jersey, accused of being part of a mob that assaulted some cops dragged out of the Capitol.
  65. Taylor Johnatakis, charged with 111.
  66. Paul Johnson, who carried a bullhorn and was in the initial assault from the west side with Ryan Samsel. BOLO 49
  67. Zachary Johnson, a Proud Boy accused of assaulting cops with pepper spray.
  68. David Judd, who threw a firecracker at cops in the tunnel. Tip and BOLO 137
  69. Josiah Kenyon, accused of attacking two cops with a broken table leg with a nail sticking out. BOLO 94
  70. Julian Elie Khater, who allegedly sprayed Brian Sicknick and two others with very powerful bear spray. BOLO 190
  71. Freddie Klein, the State Department employee who fought with three different officers while trying to break through police lines. BOLO 136
  72. Edward Jacob Lang, who identified himself in a screen cap of a violent mob attacking cops and who was filmed slamming a riot shield into police and later fighting them with a red baseball bat. Tip SM
  73. Nicholas Languerand, accused of throwing a bollard, a can of pepper spray, and a stick at cops in the Lower West Tunnel.
  74. Samuel Lazar, who was caught on video spraying chemicals and cops and claimed to be the tip of the spear.
  75. Mark Jefferson Leffingwell, whom a Capitol Police officer described in an affidavit punching him. Onsite arrest
  76. Joshua Lollar, who described fighting cops and was caught in pictures showing himself in the front lines confronting cops. Tip SM
  77. Michael Lopatic, who allegedly assaulted some cops with Stager and Sabol, then took a BWC to hide the assault. BOLO 133
  78. Avery MacCracken, accused of punching cop JG. BOLO 387
  79. Clifford Mackrell, who attempted to strip an officer’s gas mask after someone else sprayed bear spray. BOLO 124
  80. Mark Mazza, who is accused of assaulting cops with a baton, and remains under investigation for assault while still in possession of the gun he lost at the riot.
  81. Logan McAbee, who was part of a gang assault on a cop pulled out of the Capitol.
  82. Patrick Edward McCaughey III, who was filmed crushing MPD Officer Daniel Hodges in one of the doors to the Capitol. BOLO 62
  83. James McGrew, who shoved some cops in the Rotunda then bared his King James belly tattoo, Tip Network
  84. Sean McHugh, accused of spraying some yellow substance at cops and using a sign as a battering ram, BOLO 59
  85. Jeffrey McKellop, a former Special Forces guy accused of assaulting 4 cops, including one by using a flagpole as a spear. BOLO 215
  86. David Mehaffie, who directed the assaults in the Tunnel
  87. Jonathan Mellis, who used some kind of stick to try to jab and beat police. Tip SM
  88. Jalise Middleton
  89. Mark Middleton, the Middletons fought the cops outside the West entrance to the Capitol. BWC
  90. Garret Miller, who pushed back at cops and then threatened both AOC and the cop who killed Ashli Babbit. Tip LE
  91. Matthew Ryan Miller, who released fire extinguisher in close quarters. Tip SM
  92. Jordan Mink, who used a pole to assault the police.
  93. Brian Mock, who kicked a cop when he was down and bragged about it. BOLO and Tip SM
  94. Patrick Montgomery was charged with assault against MPD officer DJ in a follow-up indictment.
  95. Robert Morss, who in addition to tussling with a cop, was a key organizer of shield walls in the Tunnel. BOLO 147
  96. Aaron Mostofsky, possibly for stripping a cop of his or her armored vest and riot shield. NM
  97. Clayton Mullins, alleged to be part of the mob that assaulted AW and two other police. Tip
  98. Jonathan Munafo, alleged to have fought with cops in two different locations, including punching one in the Lower West Terrace. (BOLO and video 170)
  99. Ryan Nichols, who was filmed wielding a crowbar and yelling, “This is not a peaceful protest,” then spraying pepper spray against police trying to prevent entry to the Capitol. Tip SM
  100. Grady Owens, who allegedly hit a cop in the head on the Mall with a skateboard, as he was heading to reinforce the Capitol. BOLO 109
  101. Jason Owens, accused of assaulting a second officer after his son attacked one with a skateboard. Network Owens
  102. Jose Padilla, who shoved cops at a barricade, then helped use a Donald Trump sign as a battering ram against them. Tip SM
  103. Robert Palmer, who sprayed cops with a fire extinguisher then threw it at them.
  104. Michael Perkins, who is part of the Pollack group. Network Pollack
  105. Dominic Pezzola, a Proud Boy who stole a shield from cops. NM and BOLO 43
  106. Johnny Pollack, who serially assaulted cops and then went on the lam. BOLO 144
  107. Olivia Pollack, Johnny’s sister who also allegedly punched a cop. Pollack network
  108. Mark Ponder, filmed repeatedly attacking cops with poles.
  109. Joshua Portlock, filmed attacking cops with a piece of plywood. BOLO 97
  110. Christopher Quaglin, accused of assaulting cops both at the initial breach of the barriers and later in the Lower West Terrace.
  111. Stephen Chase Randolph, who shoved cops at the initial barricade and later bragged about a female cop’s head bouncing off the pavement. BOLO 168
  112. Howard Richardson, who allegedly beat a cop with a flagpole.
  113. Daniel Rodriguez, whom videos appear to show tasing Michael Fanone. Sedition Hunter-based reporting
  114. Edward Rodriguez, who sprayed pepper spray at cops while wearing a suit. Sedition Hunter-based reporting
  115. Greg Rubeacker, Tip SM
  116. Jeffrey Sabol, helped drag a cop from the Capitol and beat him while prone. LE arrest (erratic driving)
  117. Ryan Samsel, who set off the riot by giving a cop a concussion; he appears to have coordinated with Joe Biggs. BOLO 51 (though not IDed by BOLO)
  118. Salvador Sandoval, Jr, who went to the insurrection with his mother and shoved some cops.
  119. Robert Sanford, who was filmed hitting Capitol Police Officer William Young on the head with a fire extinguisher. Tip NM
  120. Ronald Sandlin, who tried to wrestle cops to keep the door to the Senate open. MPD tip
  121. Troy Sargent, who appears to have punched some cops holding a line. Tip SM
  122. Peter Schwartz, a felon who maced several cops. Tip NM (BOLO 120)
  123. Dan Scott, AKA Milkshake, who shoved some cops in the initial assault. Network.
  124. Christian Secor, a UCLA self-described fascist who helped shove through some cops to break into the Capitol and then sat in the Senate chamber. Tip NM
  125. DJ Shalvey. The details of the assault charged against Shalvey are not public, but he did get charged for lying about it to the FBI.
  126. Barton Wade Shively, who pushed and shoved some police trying to get into the Capitol, punched another, then struck one of those same cops later and kicked another. BOLO 55
  127. Thomas Sibick, accused of being among a group of men who attacked Michael Fanone and stole his badge.
  128. Geoffrey Sills, alleged to have used both a pole and a baton in several assaults on cops in the tunnel.
  129. Audrey Southard-Rumsey, the talented singer deemed one of the main agitators in the Statuary Hall Connector. Tip SM
  130. Peter Francis Stager, who was involved in beating a prone cop with a flagpole. Tip SM
  131. Ezekial Stecher, whom videos showed pushing in the Lower West Tunnel.
  132. Tristan Stevens, who fought cops with a shield and baton. Video
  133. Isaac Sturgeon, who is accused of using a barricade to attack some officers.
  134. Andrew Taake, who is accused to have used a metal whip and pepper spray against the cops. Tip SM
  135. George Pierre Tanios, who allegedly conspired with Julian Khater to attack Brian Sicknick and two other cops. BOLO 254
  136. Kenneth Joseph Owen Thomas, who organized a MAGA Caravan from AL and then selfied himself attacking cops. BOLO 214
  137. Christopher Warnagiris, the Marine Major who fought to keep the East door open. BOLO 241
  138. Thomas Webster, who attacked a cop with a flagpole. BOLO 145
  139. Wade Whitten, accused of dragging AW down the steps of the Capitol and hitting him with a crutch. BOLO 130
  140. Ricky Willden, who allegedly sprayed cops with a chemical.
  141. Duke Wilson, accused of assaulting several officers in the Lower West Tunnel. BOLO 87
  142. Jason Woods, who allegedly used the same tripping attack on a female cop and a cameraman. BOLO 238
  143. Christopher Worrell, a Proud Boy who apparently sprayed pepper spray at a line of police.
  144. Kyle Young, accused of attacking Michael Fanone and another officer, and stealing Fanone’s weapon.