The chief federal trial court judge in Washington rejected arguments Friday that televised hearings by the House select committee investigating the Jan. 6, 2021, Capitol attack will bias potential jurors against defendants in upcoming criminal trials, saying that if anything lawmakers appear to be placing responsibility for the violence on former president Donald Trump and his close advisers, rather than riot participants.
Chief U.S. District Judge Beryl A. Howell said that the leaders of the House panel made clear in Thursday's prime-time hearing that it is "behind-the scenes planning going on with the former president and those close to him that is the focus for where accountability lies for what happened on January 6."
"Why isn't that theme actually helpful to this defendant, making him seem like a small cog in bigger political machinations happening behind the scenes?" Howell told an attorney for Anthony Robert Williams, of the Detroit area, who faces trial June 27.
Benton C. Martin, Williams's assistant federal defender, argued that the House hearings raised "the decibel level of media coverage" and cited the "very real difference in the number of people [in Washington] who will watch knowing this was in their backyard, versus in Michigan."
"This might be the best time for defendants charged with offensive conduct on January 6 inside the Capitol building to be having their trials, when the House select committee is laying out a scenario - I'm surmising from what they're anticipating - that the persons accountable are the former president and his close associates, and that they had been planning this for weeks prior to January 2021," Howell said.
Williams has pleaded not guilty to one felony count of obstructing congressional certification of the 2020 presidential election results and four misdemeanor trespassing and disorderly conduct charges after allegedly explaining in social media posts and videos why and how he overcame police and briefly occupied the Rotunda.
Howell, a 2010 appointee of President Barack Obama, spoke after Reps. Bennie Thompson, D-Miss., and Liz Cheney, R-Wyo., made the case as chairman and vice chairwoman of the House panel on Thursday night that the assault on Congress was the violent culmination of an attempted coup by Trump to violate his constitutional duty to relinquish office.
Trump provoked the violence on Jan. 6 and did nothing to stop it for hours, Thompson and Cheney argued, after overseeing and coordinating for months a multistep plan to overturn the presidential election. Trump sought to throw out the votes of millions of American and substitute his will for the will of the voters in claiming repeatedly without evidence that fraud changed the outcome, they said.
Howell noted that lawmakers said planning leading up to Jan. 6 began weeks earlier. Cheney said one "pivotal moment" came on Dec. 19, 2020, after a White House meeting among Trump and adviser Michael Flynn, attorneys Sidney Powell and Rudy Giuliani and others, when Trump tweeted, referring to Jan. 6, "Be there, will be Wild!"
The House's two-hour presentation Thursday and the promise of further televised hearings this month has alarmed attorneys for some individual criminal defendants charged in the rioting. Several have asked to delay or move their trials, claiming that potential jurors in the nation's capital are hopelessly tainted by pretrial publicity, voted overwhelmingly for President Joe Biden, or prejudiced because they experienced that day's events as victims.
Attorneys for five key figures of the right-wing Proud Boys group escalated their criticism this week, saying the timing of new charges of seditious conspiracy against them and Thursday's hearing in which Cheney singled out the group as having "led the invasion" appear to have been politically orchestrated.
U.S. District Judge Timothy J. Kelly, a 2017 Trump appointee who is presiding over the case of defendants including former longtime Proud Boys chairman Henry "Enrique" Tarrio, called such a claim "unwarranted," but said he is or would consider motions to move or delay an Aug. 8 trial.
Separately Friday, U.S. District Judge Thomas F. Hogan invited the defense in another Jan. 6 case to file motions seeking relief as there was "a legitimate concern" regarding how the House hearings might affect defendants.
An attorney for Ryan Nichols, a Texas man accused of assaulting police with chemical spray at the Lower West Terrace tunnel, said the video montage played during Thursday's hearing gave "a one-sided narrative . . . casting the people that were there that day in the worst light possible" and would "indoctrinate" the jury pool.
Nichols asked to be released from an order barring public disclosure of evidence turned over by the government. Nichols's defense did not say what it would like to release. All of the video exhibits he has entered, including hours of footage from the riot, is already in the public record.
Hogan, a 1982 Ronald Reagan appointee, noted that similar conflicts arose during the Watergate and Iran-contra investigations. He noted that a judge eventually overturned the criminal convictions of a central figure in the latter arms-for-hostages scandal, retired Marine Lt. Col. Oliver North, because he had been given immunity to testify before Congress.
"The legislature is independent from the judiciary; they follow their own needs and requirements," Hogan said.
On Friday, Howell joined all judges who have ruled so far in dismissing a request to move Williams's trial, saying careful juror vetting can weed out bias, as seen by an initial handful of trials held to date in Jan. 6 cases.
Howell said it is "offensive" to suggest that Democratic jurors will be less fair than Republican ones, that people in Williams's native eastern Michigan are "less sophisticated" or pay less attention to the news than those in D.C., or that jurors will be unable to focus on individuals' conduct, instead of their political beliefs.
The Washington Post