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A Judge Released A Man Charged With Assaulting A Cop During The Capitol Riots, Saying The Government Messed Up Its Case

Chief Judge Beryl Howell said she likely would have kept alleged Capitol rioter Clayton Mullins behind bars, but the government’s arguments left her hands “tied.”

Posted on March 2, 2021, at 4:04 p.m. ET

An officer lies on the ground as a man appears to pull his leg
US Department of Justice

Image in charging papers that prosecutors say shows Clayton Mullins assaulting a police officer on Jan. 6, 2021.

WASHINGTON — A federal judge on Tuesday reluctantly ordered a Kentucky man charged with assaulting a police officer at the US Capitol on Jan. 6 released from jail while his case goes forward, saying she was “puzzled” by the government’s arguments and likely would have kept the man behind bars if only they’d raised different ones.

Clayton Mullins is accused of trying to drag a DC Metropolitan Police Department officer down the stairs in front of the Capitol during the insurrection; there’s no evidence that he went inside the building, but he’s charged with multiple felony counts for participating in the broader assault on the Capitol that day. Videos obtained by the government captured his alleged attack on the officer from multiple angles, including from body cameras worn by officers who were close by, according to his charging documents.

But to US District Chief Judge Beryl Howell’s surprise, although the government did ask for Mullins to stay in jail pending trial, they didn’t do so on the grounds that Mullins was charged with a “crime of violence.” Instead, the prosecutor argued that he posed a risk of flight or obstructing the case, which are narrower grounds. Howell repeatedly expressed confusion and incredulity during the prosecutor’s presentation on Tuesday. She announced at the end of the hearing that the government’s evidence and arguments on flight risk and obstruction were lacking, and she ordered Mullins released to home detention.

Howell said she likely would have ordered Mullins to stay in jail given the violence he was accused of committing on Jan. 6, but she couldn’t make a ruling based on those grounds unless the government specifically asked for it. Howell called the footage of Mullins’ alleged assault on a police officer (who is referred to in court papers as A.W.) “frightening” and said that the evidence of Mullins’ conduct at the Capitol “shows a clear disregard for the safety of others.”

But the government’s framing meant that her “hands are tied,” she said.

US Department of Justice

Image in charging papers that prosecutors say shows Clayton Mullins at the US Capitol on Jan. 6, 2021.

Mullins will be released to home detention, which means he can only leave for work, religious worship, school, medical appointments, and court and attorney visits, and will be subject to location monitoring. He also cannot have any guns in his home.

Mullins is facing several charges in connection with the Jan. 6 insurrection, but the one at issue in the fight over his detention makes it a crime to “forcibly” assault or interfere with law enforcement officers doing their duties. That section of federal criminal law gives the government the option of adding an “enhanced penalty” if the defendant used a weapon or caused “bodily injury,” but they didn’t do that in Mullins’ case.

Howell pressed Assistant US Attorney Colleen Kukowski to explain on Tuesday why the government wasn’t asking for detention on the “crime of violence” ground. Kukowski said that although courts in other cases made it clear that someone charged with the enhanced penalty would fall under that category, the law was “gray” and “murky” in cases without it. Kukowski said that the US attorney’s office had been looking into the issue — there are at least 38 defendants charged with assaulting or interfering with police at the Capitol — and received “conflicting” guidance.

Howell asked who had provided that “conflicting” information and Kukowski replied that it came “internally” from the Justice Department, but didn’t provide specifics. A Justice Department spokesperson did not immediately return a request for comment.

Most of the more than 280 people charged with participating in the insurrection have been allowed to go home while their cases are pending, but judges have been more likely to order pretrial detention for defendants charged with assaulting police at the Capitol.

Mullins was arrested on Feb. 24 and a federal magistrate judge in Kentucky held a detention hearing two days later. That judge denied the government’s request for pretrial detention and ruled Mullins could go home, subject to location monitoring, restrictions on when he could leave his house, and a $100,000 bond.

Prosecutors appealed to the federal court in Washington, DC, where all the insurrection cases are being tried. Howell paused Mullins’ release until she could consider the government’s arguments. When Kukowski on Tuesday offered to submit more briefing on the “crime of violence” issue, Howell declined, saying the government had enough time in the days after Mullins’ arrest to present arguments and that she wouldn’t keep him waiting in jail any longer.

In arguing that Mullins was a flight risk, Kukowski cited the fact that when he was arrested he was driving a car that was registered to a dealership that he owned and not to him personally; that he’s self-employed; that he’d made large cash deposits in the days leading up to Jan. 6; and that he legally owned a gun. When Howell expressed doubt that any of these factors showed he was a flight risk, Kukowski argued that taken together they showed that he led a life where he wasn’t “beholden to anyone else.”

“I’m just not seeing that here,” Howell said.

Kukowski next argued that Mullins posed a risk of obstructing the prosecution because he was already charged with obstructing police trying to protect the Capitol, although she acknowledged that logic was “circular.” Howell again wasn’t persuaded, saying the government had to present evidence that a defendant might try to intimidate witnesses or interfere with evidence and that being charged with obstructive conduct wasn’t enough on its own.

Before announcing her decision, Howell asked Mullins’ lawyer Pat Woodward Jr. if he wanted to present any arguments. Woodward declined and said the judge had basically made his case for him.

Howell imposed many of the same release conditions as the judge in Kentucky, but removed the bond requirement; the DC court generally has stopped the practice of ordering cash bail or bond as a condition of pretrial release.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.