Two weeks ago, I wrote of the Department of Justice’s overreach respecting some of the hundreds of January 6 defendants. On Friday the D.C. Circuit clipped the department’s wings. I expect more such losses as time goes on and the Department must actually present evidence in contested trials.
The ploy of keeping in D.C. jails without bail some of the protestors who engaged in no specific violent acts at the Capitol until their cases can be heard was very obviously designed to compel them to plea bargain so they could return home to their families and jobs, and the three-judge panel wasn’t buying it. If you think that there is a partisan tinge to their decision, you’d be wrong, Judge Robert Wilkins was confirmed under Barack Obama; Judge Judith Rogers under Bill Clinton, and Judge George Katsas under Donald Trump. It was bipartisan.
The case made it to the Circuit Court upon appeal from a detention order by Judge Royce Lamberth (a senior judge first appointed to the bench by then-president Ronald Reagan). I mention the judicial appointment history of these judges as an antidote to the all-too-common implications that judges are always using the law to cover their personal political beliefs. Sometimes it appears they do. Other times — like this one — they are honestly applying the Constitution and law to the facts.
And they do so here in what was clearly the Department of Justice’s political effort to paint with a broad brush anyone who supported Trump on January 6 and to place unreasonable and unlawful burdens on those protestors in order to bolster overcharged crimes.
Defense counsel in some cases asked, as is their right, for speedy trials. The government seems to be over its skis now, having heralded its charges against over 300 people, people as to whom the evidence of wrongdoing seems disputable as the government seeks to portray a grand conspiracy when, at best, it has only random acts — mostly misdemeanors by dozens of people. Claiming they need time to proceed because they are investigating some vast conspiracy seems a convenient prosecutorial trick to keep people jailed for a long time in order to compel plea agreements from people who are employed, have stable family and community relations, and no criminal history.
The unblinkered Circuit Court panel seems to have seen clearly through this maneuver. Two of the judges, Wilkins and Rogers, ordered the case returned to Lamberth to apply what it said was the appropriate standard for denying bail. In the majority opinion, Judge Wilkins distinguished between what constituted dangerous behavior and what did not:
In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.”
Judge Katsas wrote a partial dissent on how to proceed (he would have reversed and remanded the case, effectively securing the defendants’ speedier release from jail). After he expressed agreement with the majority opinion, he presented a clear description of the claimed offenses and the applicable law:
How the Case Made it to the Court of Appeals
These appeals present the question whether Eric Munchel and his mother, Lisa Eisenhart, may be detained pending trial for their participation in the riot at the United States Capitol on January 6, 2021. The answer to that question does not turn on any generalized, backward-looking assessment of the rioters or the riot, as the district court erroneously suggested. Instead, it turns on a specific, forward- looking assessment of whether Munchel and Eisenhart as individuals currently pose an unmitigable threat to public safety. My colleagues and I agree on this critical point about the governing legal standard in these appeals.
The Applicable Law
The Bail Reform Act permits pretrial detention in only “carefully defined circumstances.” United States v. Simpkins, 826 F.2d 94, 95–96 (D.C. Cir. 1987). To support detention, a court must find that “no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community.” 18 U.S.C. § 3142(e)(1). In assessing public safety and flight risk, courts must consider four factors: (1) “the nature and circumstances of the offense charged,” (2) “the weight of the evidence against the person,” (3) “the history and characteristics of the person,” and (4) “the nature and seriousness of the danger to any person or the community that would be posed by the person’s release.” Id. § 3142(g). For the public-safety determination, the government must prove all relevant facts “by clear and convincing evidence,” id. § 3142(f)(2), and we review all relevant findings for clear error, United States v. Smith, 79 F.3d 1208, 1209 (D.C. Cir. 1996).