WASHINGTON — A US Secret Service inspector testified Monday that former vice president Mike Pence was moved to an underground loading dock on the Senate side of the US Capitol during the Jan. 6 insurrection, a rare public admission of security protocol that prosecutors had fought to stop from coming out in these cases.
Whether it’ll actually help the defendant who won that reveal remains to be seen.
Monday marked the first day of trial for Couy Griffin, an elected county commissioner from Otero County, New Mexico, and the leader of Cowboys for Trump. He’s the second person charged in connection with the Capitol attack to stand trial; unlike the first defendant, Guy Reffitt, who was convicted by a federal jury earlier this month, Griffin’s case will be decided by the judge alone.
Griffin faces 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 with the intent of disrupting government business. Each offense carries a maximum sentence of a year in prison. Both charges define a “restricted area” as one where a Secret Service protectee — in this case, Pence — “was and would be temporarily visiting.”
Griffin doesn’t dispute he was at the Capitol on Jan. 6. His travel companion filmed their movements onto the grounds and up to a platform where Griffin addressed the crowd and spoke directly to the camera. The defense’s strategy instead is to challenge whether the government can prove each element of the crimes he’s been charged with.
One of those challenges involves trying to show that when Pence was evacuated from the Senate chamber as the mob descended on the Capitol grounds and made its way toward the building, he was moved to a location that was no longer within the bounds of the “restricted area” at the Capitol. They’re also arguing that for Griffin to be guilty, he had to know he was entering a restricted area — his lawyer questioned witnesses about whether there were fences or signs visible that would have made that clear to Griffin — and believe that Pence was actually still in the area. His lawyer highlighted evidence that they contend shows Griffin thought Pence had already certified the results of the Electoral College by the time he arrived.
US District Judge Trevor McFadden’s decision to let Griffin’s lawyer probe Pence’s location was a setback for the government. It had the ripple effect of forcing the government at the last minute to request, and ultimately receive, permission from the US Capitol Police Board to share with the defense a piece of evidence that they hadn’t wanted to turn over, citing security concerns — surveillance footage of Pence's whereabouts during the breach.
By the end of the day, McFadden said Griffin’s lawyer Nicholas Smith hadn’t shown that Pence left the restricted area during the hours that he was in the loading dock, suggesting the judge wasn’t sold on that defense tack. The trial is expected to wrap up on Tuesday. It wasn’t immediately clear when McFadden would announce his verdict.
Locating Pence
Griffin isn’t charged with assaulting police, obstructing Congress, conspiracy, or some of the other more serious offenses associated with the insurrection. But his public persona as the horse-riding leader of Cowboys for Trump — he had a sit-down with then-president Donald Trump at the White House in September 2019 — his position as an elected county commissioner, and his later ties to the 2020 election conspiracy theory movement made his case one of the higher-profile prosecutions.
In arguing to keep Griffin in jail after his arrest, prosecutors highlighted statements he’d made after the attack that they alleged suggested a threat of future violence, including, “We could have a 2nd Amendment rally on those same steps that we had that rally yesterday. You know, and if we do, then it’s gonna be a sad day, because there’s gonna be blood running out of that building.” They argued that as the head of the Cowboys for Trump he’d engaged in “inflammatory, racist, and at least borderline threatening advocacy.”
A federal magistrate judge originally ordered Griffin to stay in custody, but that decision was reversed and he was allowed to go home in February 2021. He’s reportedly remained involved in efforts to question the legitimacy of ballots cast in the 2020 election. Separate from his legal defense in court, he’s been affiliated with Trump ally and conservative lawyer Sidney Powell’s Defending the Republic group; the organization produced a 50-minute video about Griffin and his case and released it on its website. Powell recently was part of a legal team that represented Griffin and Cowboys for Trump in an unsuccessful challenge to registration and reporting rules in New Mexico for political organizations.
Griffin gave up his right to a jury trial and chose to go before McFadden instead. He appeared upbeat when he showed up to court on Monday morning, wearing what looked like a similar black cowboy hat that he’d worn on Jan. 6 and a white button-down shirt with “C4T” — standing for Cowboys for Trump — on the collar. He’d driven to Washington and indicated he might try to ride his horse to the courthouse, but reportedly abandoned that plan on the advice of his lawyers.
Heading into Monday’s proceedings, McFadden had already been critical of how the government had handled parts of Griffin’s case along with other Jan. 6 prosecutions. Prosecutors had originally included Kamala Harris, then the vice president–elect, in charging papers as one of the Secret Service protectees who was at the Capitol during the attack, and McFadden penalized prosecutors for being slow to remove those references in Griffin’s case and at least one other prosecution once they confirmed that she’d left earlier in the day.
McFadden agreed with the government that Griffin’s lawyer wouldn’t be allowed to ask questions about the details of Secret Service emergency protocols generally. But the judge ruled that Pence’s location was fair game.
Information about Pence’s underground location was first shared by ABC News reporter Jonathan Karl, who said he’d seen photographs of Pence while doing research for a book about Trump. Griffin’s defense team cited reports about Karl’s version of events in arguing that the government should have to turn over any information it had about Pence’s location, in case the underground area was far from the Capitol and well beyond the security perimeter.
In trying to avoid having to speak directly to the location issue, prosecutors didn’t concede that Pence was outside the restricted area, but argued that, legally, it ultimately didn’t matter since they only had to prove that Pence “would be” visiting the area later to satisfy the elements of the crimes. McFadden concluded that Griffin had a right to test the government’s theory about where exactly Pence was.
The judge went further, repeating a point he’d previously made in writing that if the government didn’t want certain information to be public because it was too sensitive, they had the option of dropping the charges — there was no Secret Service exception to the government’s burden of proving its case beyond a reasonable doubt.
US Secret Service Agent Lanelle Hawa testified on Monday that she was with Pence, his wife, and their daughter on Jan. 6 when they left the Senate chamber and Pence’s ceremonial office and evacuated to the loading dock. She explained that the area was under a plaza on the Senate side of the Capitol, near the Capitol Visitor Center. It was within the wider security perimeter that had been set up around the Capitol grounds, she testified.
Smith had suggested earlier in the day that if Pence was underground, that might not count as being within the restricted area since it was a “different spatial dimension.” During a tense period of questioning, the judge largely upheld the government’s objections to Smith’s efforts to have Hawa address various hypothetical scenarios about how the Secret Service would establish security perimeters for a traveling vice president, including if a perimeter would apply to a tunnel underground.
Smith also questioned whether the Secret Service was involved in setting the security perimeter around the Capitol. Hawa replied that she couldn’t remember specific conversations about that, but that based on the “long-standing relationship” between the two agencies when it came to security at the Capitol, the Secret Service understood where the perimeter would be for an event like the Jan. 6 certification.
As for video footage of Pence in that underground location during the breach, Assistant US Attorney Kimberly Paschall said in the morning that presented another problem since the US Capitol Police had reclaimed possession of the video, so it wasn’t within the Justice Department’s authority to simply give it to Griffin’s lawyer.
Thomas DiBiase, the general counsel of the US Capitol Police, told the judge that he’d need to get permission from the agency’s board to release surveillance footage to a third party, and that could take a day or two. The judge refused to extend the trial date, simply asking Paschall if the government wanted to proceed to trial or dismiss the case. Paschall said they would go ahead, and if the judge determined they’d violated evidence rules, they could address the question of a potential sanction later.
By the end of the day, though, Paschall announced that the board had given the green light to share it with the defense.
“We’re not going anywhere”
The government’s first witness was Matthew Struck, a video editor from Colorado who received immunity to testify. Struck said he’d become friends with Griffin in 2019 and they’d traveled together to DC. His videos are at the heart of the government’s case against Griffin, showing his movements from the Ellipse, where Trump had spoken at a “Stop the Steal” rally, to the Capitol.
Struck said he’d filmed events for Cowboys for Trump before and wasn’t being paid when he recorded videos on Jan. 6. He said he wasn’t working for Griffin, and that when Griffin had asked him for the footage to share with the media after Griffin’s arrest, he’d refused.
Through Struck’s testimony, the government introduced videos that showed Griffin making his way by foot up what appeared to be a wooden plank laid over a short wall to get closer to an area in front of the Capitol. Other videos showed Griffin walking up a set of stairs in a temporary scaffolding structure that had been built around the Capitol for inauguration festivities, and, from a higher platform, addressing the crowd below. Struck said that Griffin tried to lead a prayer — the judge saw a clip of that — and that the crowd seemed “calmed” by that.
Assistant US Attorney Janani Iyengar played other clips from Struck’s footage that showed Griffin expressing his support for the growing mob outside, making comments like “people are ready for fair and legal elections or this is what you're going to get and you're going to get more of it" and "we're not going anywhere.”
The government also showed videos that Struck filmed on Jan. 5 and Jan. 7. The day after the attack, Struck had filmed Griffin talking about his experience, with Griffin explaining that he’d learned en route to the Capitol that Pence “sold us out” and that emotions were running through the crowd. He suggested it wasn’t surprising that the crowd didn’t listen when police told them they couldn’t go into an area because it was being protected for President Joe Biden’s inauguration.
Earlier on Monday, Griffin’s lawyer had argued against the government being allowed to use a different cache of videos that prosecutors got from Struck and turned over to the defense only a few days before the trial. On the stand, Struck said the government had asked him for videos that showed the period after Trump spoke through when he and Griffin left the Capitol, so that’s what he turned over; the week before the trial, he said they asked if had any other footage, and that’s when he produced more videos.
McFadden let the government use two videos that fell within the time frame they’d asked for, but not others, saying it seemed a bit like “sandbagging” the defense. He said he didn’t think the government had acted inappropriately, but that they made an “unduly limited” request to Struck at the start and could have known about the other videos if they’d exercised “due diligence.”
The government also presented testimony from US Capitol Police Inspector John Erickson, a 32-year veteran of the force who was in charge of the Inaugural Task Force at the time of the attack. Erickson explained the security perimeter of the grounds and how the Capitol’s surveillance camera network operated, and also talked about his experience arriving at the Capitol at around 1:30 p.m. after learning that people were climbing over the inauguration scaffolding and the walls. He spent the next few hours trying to aid other officers in clearing rioters from the building.