WASHINGTON — A federal judge on Thursday slammed the Justice Department’s “muddled” approach to the Jan. 6 prosecutions, rejecting a recommendation of prison time for one rioter because it conflicted with the government’s position in other similar cases.
US District Chief Judge Beryl Howell has been one of the most outspoken members of the bench in denouncing the Capitol riots. She previously questioned whether the Justice Department was letting defendants off too lightly in plea deals. But in sentencing Jack Griffith of Tennessee to three years of probation instead of the three months behind bars that the government wanted, she explained that the court had an obligation to avoid “unwarranted” differences in sentencing — effectively finding that the government had undercut its own case.
Howell repeatedly expressed puzzlement at how the Justice Department was managing the Jan. 6 cases, especially for defendants charged solely with misdemeanor crimes. She questioned prosecutors using “scorching” rhetoric to describe the severity of the attack on the Capitol while also using words like “trespass” to describe what some defendants, including Griffith, did that day. She described the government’s brief as “almost schizophrenic.”
She also pressed prosecutors to explain why the government was offering plea deals for low-level charges that limited judges’ options at sentencing, especially when prosecutors had articulated that one goal of these cases was to prevent a similar postelection attack on the peaceful transfer of power in the future.
“This is a muddled approach by the government,” she said. It is “no wonder,” she said, that some people “are confused about whether what happened on Jan. 6 was a petty offense of trespassing or shocking criminal conduct that represented a grave threat to our democratic norms.”
Out of roughly 650 people charged with participating in the riots, 117 have pleaded guilty and 22 have been sentenced. Recent hearings have revealed a range of opinions among the judges presiding over these cases about what they believe an appropriate sentence should look like.
A few judges have imposed sentences that were harsher than what the government asked for, including in cases where defendants pleaded guilty to the same crime as Griffith: parading, demonstrating, or picketing in the Capitol, a class B misdemeanor with a maximum sentence of six months in prison. The government had asked for home confinement for Matthew Mazzocco of Texas, who pleaded guilty to the parading offense, but US District Judge Tanya Chutkan sentenced him to 45 days behind bars. She explained at the time: “There have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home.”
The parading charge is the most common count that Capitol rioters are pleading guilty to so far. Howell wasn’t satisfied with the government’s explanations for why its sentencing recommendations in these cases had ranged from probation to incarceration. Assistant US Attorney Jamie Carter said that the government was analyzing a variety of factors in deciding what sentence to push for, including whether there was evidence that a defendant understood and supported the violence at the Capitol and how much remorse they expressed afterward.
In Griffith’s case, the government highlighted evidence that he was excited to participate in the riots, defended what happened, and expressed regret that the mob had failed to stop Congress from certifying the results of the election. Prosecutors also cited BuzzFeed News’ reporting on a video game that Griffith had continued to promote on Facebook and TikTok in the weeks leading up to his plea hearing in July that featured a Donald Trump character shooting and threatening monsters, members of “antifa,” “Dem zombies,” and other assorted enemies.
A period of incarceration would deter Griffith — and others — from engaging in similar criminal activity going forward, prosecutors argued. Howell pushed back, questioning whether the government’s decision to offer people who joined the mob “basically the most minimal of federal criminal charges” would achieve that goal.
The judge also probed the $500 in restitution that Griffith agreed to pay as part of his deal; misdemeanor deals in Jan. 6 cases have featured $500 in restitution, while most felony deals have required $2,000. Howell noted that the government’s estimate of $1.5 million in damage to the Capitol was much less than the full cost of the Jan. 6 attack to the US government — the hundreds of millions of dollars that Congress approved for law enforcement protection around the Capitol complex, for instance. She called the government’s analysis “baffling.”
Assistant US Attorney James Pearce said that the government continued to evaluate the cost question, but said that they didn’t believe, for instance, that providing security at the Capitol after the riots was something that defendants should owe restitution for. He explained that prosecutors came up with the $500 and $2,000 restitution amounts based on an estimate that between 2,000 and 2,500 people illegally went into the Capitol and a calculation of what it would take for defendants collectively to pay enough to cover the damage estimate from the Architect of the Capitol.
Howell pointed out that class B misdemeanor deals removed judges’ authority to do their own calculations for how much restitution defendants should owe; federal law gives judges more leeway on restitution for higher-level crimes. Nearly everyone charged in connection with Jan. 6 faces a baseline set of four misdemeanors, including two class B crimes and two class A crimes. US District Judge Amy Berman Jackson previously questioned the decision to let rioters plead to a class B offense because it also removed judges’ flexibility to impose a period of court supervision.
A few judges have ordered defendants who pleaded guilty to pay fines as a separate form of punishment, but Howell determined that Griffith didn’t have the means to do that.
Griffith was arrested on Jan. 16. An unnamed informant alerted the FBI that Griffith documented his participation in the riots on Facebook, including a post featuring a photo of himself with his fist raised inside the Capitol. The caption for that photo included the line, “I even helped stormed the capitol today, but it only made things worse," followed by a sad-face emoji.
Investigators identified Griffith in a video that one of his codefendants, Matthew Bledsoe, allegedly posted on Instagram that showed the two men just outside a door to the Capitol. In that video, Griffith, wearing glasses and a red “Make America Great Again” hat, “screams in excitement,” as the FBI described it in charging papers. (Bledsoe has not pleaded guilty.) The government later released the video in connection with a guilty plea entered by the third codefendant in the case, Eric Torrens, who is scheduled to be sentenced by Howell on Friday.
Griffith’s plea deal prompted Howell to previously question the government’s charging decisions. During his July plea hearing, Howell said that a class B misdemeanor like the one that Griffith pleaded guilty to was usually reserved for petty crimes like trespassing in a national park at night.
“I'm just curious — does the government have any concern given the factual predicate at issue here, of the defendant joining a mob, breaking into the Capitol building through a broken door, wandering through the Capitol building and stopping a constitutionally mandated duty of the Congress and terrorizing members of Congress, the vice president, who had to be evacuated?” Howell asked at the time. “Does the government, in agreeing to the petty offense in this case, have any concern about deterrence?”
The prosecutor and Griffith’s lawyer H. Heather Shaner defended the agreement, pointing out that Griffith was getting credit for coming forward early to take a deal and had cooperated with federal law enforcement by turning over his devices and giving them access to his social media accounts.
Shaner argued on Thursday that contrary to the government’s position, Griffith was sorry for joining the attack on the Capitol. She blamed his documented excitement during and immediately after the riots in part on impulsive behavior caused by ADHD and an "addiction" to the internet. Howell wasn’t buying that he acted on impulse, pointing out that he’d traveled from Tennessee to Washington, said that he wanted to storm the Capitol, and then did so.
Howell also said it could be hard for judges to tell if a defendant were truly remorseful. She referred to the case of Anna Morgan-Lloyd, who pleaded guilty to the parading count, received a sentence of probation, and then went on Fox News and gave a description of what she saw at the Capitol that downplayed the violence. Morgan-Lloyd had been a client of Shaner’s. The lawyer told Howell that Morgan-Lloyd got “played” by host Laura Ingraham into giving an answer on air that didn’t accurately reflect her remorse.
Shaner has represented several defendants charged in connection with Jan. 6, and she told Howell that some of them are cooperating with the special House committee investigating the riots; Griffith was prepared to make himself available, she said. Shaner said Morgan-Lloyd hadn’t wanted to do any more interviews after the Fox News incident and hadn’t spoken with the committee.
Griffith addressed Howell and read out loud from a letter he’d written, apologizing for his role in the riots and saying that he disavowed the violence.
“Although I may not have personally participated in any violence or vandalism, the fact that I can be seen smiling and gleefully cheering on as our democracy was under attack is downright disgraceful. I am ashamed of the way that I acted,” Griffith said. As for the video game, he said that he’d continued to promote it after Jan. 6 because he felt that he needed to raise money to pay back people who had invested in it.
As part of his three years of probation, Griffith will have to spend 90 days in home confinement, which means he can only leave his home for work and a few other preapproved reasons.