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Prosecutors Lost A Bid To Keep A Former Trump Official Charged In The Capitol Riot In Jail

The judge called the decision to reverse an earlier ruling and allow Federico Klein to go home a "close" one.

Posted on April 12, 2021, at 5:20 p.m. ET

US Department of Justice

Police body camera footage that prosecutors say shows Federico Klein clashing with police at the US Capitol on Jan. 6, 2021.

WASHINGTON — A former Trump administration appointee charged with clashing with police during the Jan. 6 insurrection at the US Capitol will be allowed to go home, a judge ruled Monday, denying prosecutors' request to keep him behind bars.

Federico Klein's alleged actions on Jan. 6 were "deeply troubling" and revealed "some propensity for violence, as well as a blatant disregard for the law," US District Judge John Bates in Washington, DC, wrote. Klein, 42, is facing an eight-count indictment, including multiple felony charges for assaulting and interfering with police at the Capitol and trying to obstruct Congress from certifying the results of the presidential election.

But Bates found that other factors weighed in favor of releasing Klein as his case goes forward, including the lack of evidence that he planned for violence or took a leadership role; the fact that prosecutors hadn't objected to release for other Capitol riot defendants charged with assaulting police; and Klein's minimal past criminal history.

"Klein’s conduct was forceful, relentless, and defiant, but his confrontations with law enforcement were considerably less violent than many others that day, and the record does not establish that he intended to injure others," Bates wrote.

Klein, who lives in Annandale, Virginia, has been in jail since his arrest on March 4 and will now be released to home detention. That means he can only leave his house for work, education, medical appointments, religious observances, court dates and meetings with his lawyer, and a small number of other preapproved reasons.

The decision in Klein's case is the latest setback for the US attorney's office in Washington after the US Court of Appeals for the DC Circuit issued an opinion late last month that made it harder for prosecutors to successfully argue for pretrial detention in Capitol riot cases. Bates reversed a federal magistrate judge who had ordered Klein to stay in jail, finding that the DC Circuit's March 26 decision in the case of alleged Capitol rioters Eric Munchel and Lisa Eisenhart — which set precedent that federal district judges such as Bates must follow going forward — "impacts the analysis."

Prosecutors have withdrawn detention requests in some cases in the weeks since the DC Circuit issued the opinion in the Munchel case, particularly for defendants who aren't charged with assaulting police or taking a leadership role in planning for violence on Jan. 6.

Klein had worked in the Office of Brazilian and Southern Cone Affairs and was still employed at the State Department when he allegedly participated in the insurrection. According to charging papers, Klein joined a mob of people who gathered at the Lower West Terrace of the Capitol and attempted to push through a line of police officers protecting one of the entrances to the building. Prosecutors presented screenshots from police body cameras that they said showed him using a riot shield to shove against officers and also to wedge a door open. They alleged that other open-source videos from the scene recorded Klein calling to the crowd behind him, "We need fresh people, we need fresh people."

US Department of Justice

Screenshot from police body camera footage that prosecutors say shows Federico Klein pushing police at the Capitol

Prosecutors argued that Klein's former position and the fact that he'd held top secret security clearance meant he was a danger to the community because he'd shown a "contempt" for the oath he took to defend the US Constitution. That argument proved persuasive before US Magistrate Judge Zia Faruqui last month; Faruqui said that Klein had "sworn an oath to protect then switched sides."

But Bates wasn't convinced that Klein's past role in the Trump administration hurt his case for release now. Klein's alleged actions on Jan. 6 were "troubling" and represented a "substantial and deeply concerning breach of trust," Bates wrote, but the judge wasn't clear how his previous job "heightens" his dangerousness going forward. Bates noted there was no suggestion by the government that Klein might try to abuse classified information he previously had access to and no evidence that he was affiliated with extremist groups.

Bates cited other cases involving alleged Capitol rioters charged with hitting or deploying a Taser against police — and where there also wasn't evidence of advance planning — in which prosecutors didn't argue for detention. Those other cases didn't involve the same "duration of force" alleged in Klein's case, the judge wrote, but noted that Klein's "most forceful conduct was directed to advancing and maintaining the mob’s position in the tunnel, not toward inflicting injury."

"He does not pose no continuing danger, as he contends, given his demonstrated willingness to use force to advance his personal beliefs over legitimate government objectives," Bates wrote. "But what future risk he does present can be mitigated with supervision and other strict conditions on his release."

In addition to home detention, Klein will be prohibited from going to the Capitol grounds, attending any political protests, contacting anyone else accused of participating in the Jan. 6 insurrection, and possessing any firearms or weapons. He'll also be subject to GPS monitoring.

Bates did ding Klein for arguing that his conduct on Jan. 6 wasn't as serious as other defendants because he didn't actually make it inside the Capitol, calling that argument "nonsensical."

A spokesperson for the US attorney's office declined to comment. Klein's attorney Stanley Woodward Jr. did not immediately return a request for comment.

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.