WASHINGTON — Couy Griffin, the leader of “Cowboys for Trump” and an elected county official from Otero County, New Mexico, was found guilty on Monday of illegally being in a restricted area of the US Capitol during the Jan. 6 insurrection, but a judge acquitted him of a second charge for disorderly conduct.
In handing down the mixed verdict, US District Judge Trevor McFadden rejected a host of legal challenges raised by the defense to the government’s ability to pursue one of the most common misdemeanor offenses charged across hundreds of pending cases related to the Jan. 6 attack. At the same time, he found that the bar had to be higher for the government to show that a person’s actions at the Capitol crossed the line into disorderly conduct, beyond the mere fact of their illegal presence.
Griffin will be sentenced on June 17. Both charges were misdemeanor offenses carrying up to a year in prison.
Griffin was the second person charged in connection with Jan. 6 to go to trial; the first defendant, Guy Reffitt, was convicted on all counts earlier this month and is awaiting sentencing. Griffin had opted to give up his right to a jury and have McFadden decide his case alone.
During the two-day bench trial, there was no dispute from the defense that Griffin went to the Capitol during the Jan. 6 attack, or even that he’d climbed over walls to get up to a platform in front of the building. Instead, the defense’s strategy had been to argue that the government couldn’t prove that Griffin’s actions violated the specific crimes they’d decided to charge him with.
Griffin faced two misdemeanor counts: illegally being in a restricted area within the Capitol or grounds and engaging in “disorderly and disruptive conduct” in a restricted area to disrupt government business. Both charges defined a “restricted area” as one where a Secret Service protectee — in this case, former vice president Mike Pence — “was and would be temporarily visiting.”
In announcing his decision, McFadden explained that he credited testimony from US Capitol Police and US Secret Service witnesses about where the restricted area around the Capitol began and that when Griffin climbed over what’s known as the “Olmsted wall” on his way towards the building on the west side, he entered it. Griffin had filmed a video in front of the west side of the Capitol a day earlier, the judge noted, and it was likely that he’d seen the fencing around the area. Griffin climbed over three walls, including two where he used a metal bike rack and a wooden plank for assistance, which would suggest to a “normal person” that they weren’t supposed to be there, the judge said.
As Griffin made his way forward, he went up a stairway and through what had been a closed door, and the judge highlighted a video where Griffin or someone near him was heard talking about waiting for the door to be broken down. Griffin was aware of pepper spray in the air. Finally, the judge referenced two videos of Griffin speaking after Jan. 6 where he talked about the area being closed. McFadden said that each piece of evidence on its own might not have been enough to convict Griffin, but that taken together, the government had proved its case beyond a reasonable doubt.
McFadden rebuffed various defense challenges to some of the broader issues the defense raised about whether the offense Griffin had been charged with could apply to any person involved in the attack on the Capitol. He found that the restricted area at least covered the first wall that Griffin had climbed over. He found that Pence was “temporarily visiting” the Capitol, and that when he was taken to an underground loading dock near the Capitol Visitor Center, he was still in the restricted area. He found that the government didn’t have to show that Griffin knew Pence was still there.
McFadden’s findings on these questions of law aren’t binding on any of his other colleagues presiding over Jan. 6 cases, but the government can now point to his conclusions if other defendants try to raise similar arguments.
On the second charge, however, McFadden found that the evidence of Griffin’s actions at the Capitol failed to meet the standard for disorderly conduct. The judge concluded that the government’s evidence didn’t show that Griffin intended to disrupt official business at the Capitol. McFadden focused on the fact that Griffin had tried to lead the crowd in a prayer and called on people to kneel, saying it was a move arguably aimed at calming people down and not filing them up. Griffin had made statements about wanting to stop the election from being stolen, but the judge said those were too general to show that he was trying to disrupt Congress.
“Any reasonable person”
Heading into closing arguments, McFadden signaled he was grappling with two issues in the government’s case: whether prosecutors could prove that Griffin knew he was entering a restricted area, and whether Griffin’s actions that afternoon — which included leading the crowd in prayer and making loud comments in support of the mob, as well as his physical presence — met the bar for being disorderly conduct.
Assistant US Attorney Janani Iyengar pointed out that Griffin had climbed over multiple walls, at times using a metal bike rack and a wooden plank to make his way over, and then walked up a set of stairs within temporary scaffolding that had been built for the inauguration festivities to reach a platform in front of the building that overlooked the crowd below. “Any reasonable person” would know they didn’t have authority to climb over a wall and enter a government space, she said.
Iyengar also focused on two videos from after Jan. 6 where Griffin described his experience at the Capitol, one recorded the next day and one from a week later at a meeting of the Otero County commission. Iyengar noted that in both accounts, Griffin described the area he entered as being closed off — at the Otero County meeting he’d referred to “fencing” — and police telling the crowd they couldn’t go forward because the area had been blocked off in anticipation of the inauguration.
Griffin’s lawyer Nicholas Smith argued that a witness who’d traveled with Griffin and received immunity to testify, Matthew Struck, had told the judge that he didn’t remember the pair encountering law enforcement and thought Griffin’s description of the area being closed off might have come from information Griffin learned later. Smith said there was no evidence Griffin saw fences or signs, and argued that a US Secret Service agent who testified at trial wasn’t totally clear on the extent of the restricted area, so how could his client be expected to know that.
As for the disorderly conduct charge, Iyengar argued that Griffin’s decision to climb up to the platform and shout and engage with the crowd set him apart from a person who had just walked around on the grounds. She pointed to Secret Service Inspector Lanelle Hawa’s testimony that the ongoing breach meant they had to keep Pence in a secure location for hours, and that even if Griffin believed Congress had already certified the results of the Electoral College — that wouldn’t happen until after the building was cleared that evening — it was still a work day, so his presence would have the effect of disrupting official business.
Iyengar pushed back on the idea that they were prosecuting Griffin for praying or for the content of his speech. She argued that his location and the way he was loudly engaging with the crowd was what he was being charged for. Smith countered that the government’s theory crossed the line into implicating First Amendment-protected speech, and that they’d failed to meet the legal standard for showing that what Griffin said was actually threatening.
Smith lodged a multi-part attack on the charges. He argued that when Pence was taken to an underground loading dock near the Capitol Visitor Center — a fact the judge had ordered the government to reveal at trial over its objection — that took Pence outside of the legally defined restricted area. McFadden had said at the end of the first day of trial and during closing arguments on Tuesday that he didn’t buy that theory.
Smith also argued that Pence wasn’t “temporarily visiting” when he went to the Capitol on Jan. 6 — another element of the charges — because he was going to a permanent office that the vice president has as president of the Senate. He argued that the government not only had to prove that Griffin knew he was entering a restricted area, but also that Griffin knew Pence was there. McFadden said that theory felt “preposterous” in terms of its practical application, questioning if it would mean the Secret Service had to provide public notice of which protectees were actually inside a building for a space to qualify as a “restricted area.”
After hearing closing arguments, the judge recessed for about 45 minutes before announcing his decision. He asked Griffin’s lawyer if they wanted to go right into sentencing, but Smith said he wanted to wait and put their sentencing proposal in writing. Smith also asked if they could do sentencing by video — the court has allowed remote sentencing during the pandemic — but McFadden said no.