WASHINGTON — Hours after thousands of former president Donald Trump’s supporters attacked the US Capitol on Jan. 6, Jenny Cudd sat outside a downtown hotel and taped a 25-minute livestream on Facebook describing her participation in the mob — “the new revolution,” in her words.
The Midland, Texas, florist displayed a mix of pride, anger, and tears as she narrated how she and other “patriots” decided to “storm” the Capitol after learning that former vice president Mike Pence had “betrayed us.” Two days later, she spoke with a local TV station, denying she’d committed a crime and expressing no regrets: “Yes, I would absolutely do it again.”
Cudd’s defiant stance was absent as she appeared by video before a judge on Wednesday to plead guilty for her role in the riots. The hearing marked a significant milestone, not just because Cudd was one of the higher-profile defendants — she made headlines for asking to travel to Mexico and invoked “cancel culture” in arguing to move her case out of DC — but also in the broader prosecution effort: She was the 100th person charged in connection with the Jan. 6 insurrection to enter a guilty plea.
One hundred is an arguably arbitrary number, since the total number of people charged with participating in the riots keeps growing and prosecutors haven’t announced a target for when the investigation will end. The FBI has hundreds of photos posted online of people they’re still trying to identify.
But 100 is a nice round number, and a large enough pool to understand the deals that prosecutors have offered in the months since the attack on the Capitol, who is taking them, and what both sides are getting in return. BuzzFeed News is publishing a database of documents filed in connection with these pleas, including the agreements that outline the terms and separate statements of the criminal conduct that defendants are admitting to.
Defendants taking early deals are avoiding the greater legal risk and public exposure they’d face if they went to trial; they’re hoping to walk away with little to no time behind bars. Prosecutors are securing a steady stream of convictions as they continue to track down more suspects and defend against legal challenges to some of the more complex cases they’ve already brought.
Judges, meanwhile, are using some of their final encounters with rioters at plea hearings and sentencings to denounce the post-election conspiracy theories that motivated the riots and the right-wing rhetoric downplaying the severity of what happened at the Capitol in the months that followed. They’ve insisted defendants fully admit the role they played — not just the individual criminal activity they’re pleading guilty to, but also enabling the attack on Congress and bolstering Trump’s effort to disrupt the peaceful transfer of power after he lost in November.
At an Oct. 8 sentencing, US District Judge Thomas Hogan said he feared some rioters taking early plea deals were saying whatever they thought judges and prosecutors wanted to hear. Hogan sentenced the defendant before him at the time, Robert Reeder, to more prison time than Reeder wanted, although not as much time as prosecutors argued for. Reeder pleaded guilty to one misdemeanor for illegally parading at the Capitol, but the government highlighted recently discovered footage that appeared to show Reeder assaulting police.
“It’s become evident to me in the riot cases … that many of the defendants who are pleading guilty are not truly accepting responsibility. They seem to me to be trying to get this out of the way as quickly and as inexpensively as possible and stating whatever they have to say in guilty pleas and hoping to get probation and leave,” Hogan said.
Oct. 6 marked nine months since thousands of Trump supporters descended on the Capitol, sending lawmakers fleeing and temporarily halting a special session of Congress to confirm the election results. US Capitol Police initially estimated that 800 people had made it inside the building, but HuffPost recently reported that that number could be closer to 2,000. The bulk of the crowd amassed on the grounds outside, where some rioters attacked the outnumbered police officers trying to maintain a security perimeter as well as journalists covering the melee. To date, more than 630 people are facing federal charges.
Most of the 100 rioters to take a deal have pleaded guilty to the least serious crime they were charged with: parading, demonstrating, or picketing in the Capitol, a class B misdemeanor that carries a maximum sentence of six months in jail. Defendants pleading guilty to that crime or disorderly conduct in the Capitol (also a class B misdemeanor) are getting a few benefits: avoiding a trial on multiple charges, some of which carried more potential prison time; a chance to argue to a judge for credit for accepting responsibility early; and, in some cases, an agreement from prosecutors to advocate for a light sentence.
The US attorney’s office in Washington, DC, is clearing some of the least complicated prosecutions — nonviolent offenders who in many instances documented their trek into the Capitol online — from its ever-growing caseload. The government has required some defendants to give the FBI access to their cellphones and social media accounts as investigators continue to search for more evidence from that day. In the smaller pool of felony plea deals, the government has been lining up cooperators in connection with a conspiracy they’ve alleged involving the far-right extremist group the Oath Keepers.
Guilty pleas began to trickle in over the summer, and the pace picked up heading into the fall. In June, 11 defendants pleaded guilty. In September, there were 42 plea hearings. A few defendants on track to enter a guilty plea have put on the brakes. A judge had scheduled a plea hearing this week for Eric Barber, a West Virginia man identified by the FBI wearing a combat-style helmet inside the Capitol who had spoken with local news outlets about his experience. But a few days earlier, his lawyer asked to postpone that, saying they needed more time to discuss the government’s offer and review evidence they’d received from prosecutors.
Most people appearing before judges to plead guilty have been polite and contrite. In a few cases, defendants made a last-ditch effort to insist that they weren’t as bad as other rioters or that what they did wasn’t as serious as it looked on paper.
There was Josiah Colt of Idaho, who made a point of explaining during his plea hearing on July 14 that when he’d posed for a photo lying in bed holding a gun — which a friend posted on Facebook with a caption saying Colt was “ready” for Jan. 6 — that it was meant as a “joke.”
When Leonard Gruppo of New Mexico appeared in court on Aug. 18, US District Chief Judge Beryl Howell asked him to confirm that he’d entered the Capitol to protest Congress’s certification of the election — that is, that he’d been more than a mere “tourist” and actually paraded, demonstrated, or picketed in the Capitol, which was the charge he was pleading guilty to. Gruppo paused.
“Your honor, I was there to support the president,” he said. That answer didn’t satisfy Howell. She explained that to accept his guilty plea, she had to be sure he committed the crime spelled out in his agreement with the government. He again balked, denying that he’d gone into the building with the intent of disrupting Congress. After more back-and-forth, Gruppo said that he’d entered to demonstrate in support of Trump, and Howell accepted his plea.
Judges for the most part have accepted these guilty pleas with no pushback. But a few, including Howell, have questioned whether it’s appropriate for someone who joined the mob that attacked the Capitol to plead to a low-level misdemeanor, regardless of whether they were violent. No judge has rejected a deal yet — something they have the power to do — but these exchanges are a warning that it’s a possibility. This month, a judge for the first time handed down a sentence for a Capitol rioter that was more severe than what the government had asked for.
“There have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home,” US District Judge Tanya Chutkan said at an Oct. 4 hearing as she announced her decision to sentence Matthew Mazzocco of Texas — who took selfies inside the Capitol and defended the riots in messages after — to 45 days in prison instead of home confinement.
Prosecutors have defended offering misdemeanor plea deals, explaining to judges that defendants should get credit for coming forward early to resolve cases in such a resource-intensive investigation. The government’s court filings have described the hundreds of thousands of tips that poured into the FBI, the mountain of video and photographic evidence, and the complexity of tracking down suspects who, for the most part, were allowed to walk away from the Capitol and go home, fanning out across the country.
A spokesperson for the US attorney’s office in DC declined to comment.
Carissa Byrne Hessick, a professor at the University of North Carolina School of Law and an expert on plea bargaining, said that it’s not unusual for the government to show leniency and extend plea offers in part to free up resources. But she echoed some judges’ concerns about whether the usual rules should apply under these circumstances.
“It strikes me that the people who entered the Capitol did something a lot more than that. They didn’t just go somewhere they weren’t supposed to be, but they went there for a particular reason. And it was a pretty bad one: They wanted to stop votes from being counted and they wanted to stop the election from being certified,” Hessick said. “I hope people will see how much efficiency is weighing into the calculus here, and ask why we’re running our justice system this way.”
Prosecutors have focused early plea offers on cases involving the least serious offenses. The vast majority of guilty pleas — 80 out of 100 — have involved defendants charged solely with misdemeanor crimes from the start.
A much smaller number of defendants — 5 out of 100, including Cudd — were charged with a felony but pleaded guilty to a misdemeanor. In more than half of all prosecutions filed to date, defendants have been charged with at least one felony for obstructing an official proceeding, which has a maximum sentence of 20 years in prison. Prosecutors have typically pursued that charge for defendants who expressed an intent to disrupt Congress or who made it farther into the building.
Cudd and her co-defendant Eliel Rosa of Texas were both indicted on the obstruction charge but pleaded guilty to misdemeanor crimes. Cudd pleaded guilty to entering a restricted building, a class A misdemeanor that carries a maximum sentence of one year in jail; her estimated recommended sentencing range at this stage of the case is zero to six months, given her lack of criminal history. Rosa pleaded guilty to a parading count and this week was sentenced to 12 months of probation, one of the lightest sentences a judge has handed down so far; the government noted in a recent brief that he’d contacted the FBI three days after the insurrection to turn himself in. Cudd’s lawyer Marina Medvin noted during her plea hearing on Wednesday that they’d tried to negotiate for the same deal as Rosa, but the government wouldn’t budge.
The remaining 15 plea deals involve at least one felony. Of those defendants, seven agreed to fully cooperate with investigators and delay sentencing until they finish giving the government whatever it wants — a sign that prosecutors have extended early plea offers to more serious offenders when they believe that person has something of value to give in return. Cooperation can include sharing evidence, speaking with law enforcement, and testifying before a grand jury or at trial. None of the cooperators has a sentencing date, which means the government isn’t done with them yet.
Four people have pleaded guilty to assaulting police. These cases especially have illustrated how far — or not — prosecutors have been willing to let rioters negotiate down the severity of the charges they’re pleading guilty to.
Scott Fairlamb of New Jersey and Devlyn Thompson of Washington state both pleaded guilty in August to assaulting police, but they got different deals. Thompson, who picked up a metal baton and swung it at officers, had secretly cooperated with the government for months before pleading to one felony count; he’d been allowed to live at home before his plea hearing but is now in jail awaiting sentencing. Fairlamb, who punched an officer in the head, has been in custody since his arrest in January and pleaded guilty to two of the most serious felonies he was charged with; he opted not to go to trial on the 12-count indictment returned by a grand jury.
Two defendants — Cleveland Meredith Jr. of North Carolina and Troy Smocks of Texas — pleaded guilty to making threats against Democrats and others. Neither was charged with going into the Capitol, but they’re considered part of the Jan. 6 cases. Meredith had tried to get to DC in time for the pro-Trump rally that preceded the riots but arrived too late; he brought a handgun, rifle, and ammunition with him and was also indicted on weapons possession offenses, but those were dropped as part of his deal. Smocks was in DC on Jan. 6 and sent messages suggesting he joined the riots, but it wasn’t clear if he went inside the Capitol.
Plea documents also add texture to understanding what was happening in and around the Capitol at any given time during the insurrection. Charging papers feature the government’s narrative, but a guilty plea transforms information from allegation to fact — prosecutors file what’s known as a statement of offense, which describes events that the defendant admits happened.
Robert Palmer of Florida threw a wooden plank at officers, deployed a fire extinguisher at them, and then threw the empty canister. Mark Grods of Alabama stashed firearms in a Virginia hotel as part of a conspiracy of Oath Keepers and rode a golf cart to the Capitol. Duke Wilson of Idaho, wearing a baseball cap that declared CNN “FAKE NEWS,” joined a mob trying to push through police guarding one of the entrances to the Capitol, hitting an officer with a plastic pipe and trying to help pull away another officer’s riot shield.
Andrew Ericson of Oklahoma propped his feet up on a conference room in House Speaker Nancy Pelosi’s conference room and took a beer out of a minifridge. Colt hoisted himself down from the Senate gallery balcony to the floor and briefly occupied the dais where former vice president Mike Pence had been sitting. Karl Dresch of Michigan posted on Facebook, “we the people took back our house” and “those traitors Know who’s really in charge.” With an alarm going off in the background, Eric Torrens was recorded on video exclaiming, “We’re going in!” as he entered the Capitol.
A close reading of these documents also highlights tools prosecutors have used in plea negotiations — like “wiring” together offers for couples and other people who didn’t travel alone.
Only 18 defendants have been sentenced, too small a number to draw conclusions about the full spectrum of consequences for people who participated in the riots. Defendants pleading guilty to felonies for assaulting police or conspiring in advance to attack the Capitol will almost certainly spend time in prison. Some people who pleaded guilty to misdemeanors have received prison time and some have not. Some defendants are challenging the lawfulness of the felony charge for obstructing Congress, and if the government loses that fight it could dramatically reshape the landscape of these cases going forward.
Judges have repeatedly expressed that they’re not viewing each defendant’s actions on Jan. 6 in isolation, but their sentencing options ultimately are limited by the charges the government brings and what prosecutors agree to as part of plea deals. At Mazzocco’s sentencing hearing this month, Chutkan spoke about how the outcomes of these cases not only had to punish individual rioters for their actions on Jan. 6, but also send a strong enough message to stop other people from joining some similar attack on the government in the future.
“The country is watching to see what the consequences are for something that has not ever happened in the history of this country before,” the judge said, “for actions and crimes that threaten to undermine the rule of law and our democracy.” ●