Judge rips U.S. for prosecutions of riot suspects

Trump backers get harsher terms than others, he says

A federal judge criticized U.S. prosecutors for seeking jail time for some nonviolent Donald Trump supporters in the Jan. 6 Capitol breach, but not for left-wing activists who protested the 2018 Senate confirmation of Trump Supreme Court nominee Brett Kavanaugh.

“I know that the government believes that the January 6th cases are sui generis” — or one of a kind — “and therefore can’t be compared to other cases. But I don’t agree,” said U.S. District Judge Trevor McFadden, a 2017 Trump appointee.

He called the riots the latest in Washington’s history of high-profile and politically divisive mass demonstrations.

“It does feel like the government has had two standards here, and I can’t abide by that,” McFadden said.

The judge added that before Jan. 6, he could not remember seeing a nonviolent, first-time misdemeanant “sentenced to serious jail time … regardless of their race, gender or political affiliation.”

McFadden spoke out March 22 in sentencing Capitol riot defendant Jenny Cudd, a 37-year-old florist and onetime Republican mayoral candidate from Midland, Texas, who pleaded guilty to misdemeanor trespassing.

Prosecutors with the U.S. attorney’s office for Washington asked the judge to sentence Cudd to 75 days in jail and one year probation. Instead, he imposed two month’s probation and a $5,000 fine, contrasting her case with that of Tighe Barry, an activist with the left-wing antiwar Code Pink group.

The judge said that the same prosecutor’s office in 2019 sought 10 days behind bars for Barry, who stood on a chair, held up a poster, and shouted at senators from the back row in one of Kavanaugh’s Senate Judiciary Committee hearings in September 2018, and returned to protest three weeks later in violation of a stay away order.

“The government’s sentencing recommendation here is just so disproportionate to other sentences for people who have engaged in similar conduct,” said McFadden, adding that Barry, a frequent demonstrator with 14 prior arrests, accidentally knocked a chair into a bystander when Capitol Police arrested him. “I don’t believe in some sort of aggregate justice.”

Barry was sentenced to six days.

McFadden’s outspoken criticism of the Justice Department put him out of step with 18 other federal judges who have sentenced Jan. 6 defendants in the U.S. District Court in Washington. Fifteen of those judges have imposed jail time in misdemeanor cases, and many of them, like McFadden previously served as federal prosecutors in the District.

But his remarks stirred a continuing debate over breach cases. McFadden also complained last fall that prosecutors were treating pro-Trump rioters more harshly than those who committed violence in D.C. in 2020, after the killing of George Floyd by Minneapolis police, a point disputed by other judges who have sentenced people to months in jail for looting and arson.

Some Republican senators similarly grilled U.S. Attorney General Merrick Garland at his confirmation hearings over what they asserted was unpunished far-left violence during racial justice protests at the federal courthouse in Portland, Ore.

Garland said those who attack or damage federal buildings will be prosecuted, but drew a distinction between an attack on government property at night and the Capitol siege.

“Both are criminal,” Garland said, “but one is a core attack on our democratic institutions.”

While one or two other judges like McFadden have balked at sentencing Jan. 6 misdemeanor offenders to jail, most have pushed the other way, criticizing prosecutors for charging many participants like they would nonviolent protesters who routinely disrupt congressional hearings, or as simple trespassers.

In all, U.S. prosecutors have asked judges to impose jail time for 12 of about 15 defendants sentenced so far after conviction on the same specific charge as Cudd — unlawfully entering or remaining in restricted Capitol grounds.

Judges have agreed in eight of those cases, according to a Washington Post tally. That count does not include a northeast Florida man who McFadden sentenced in December to 10 days in jail on weekends, two years probation and 100 hours community service, before suspending the jail term.

Prosecutors requested two months jail on average and those locked up received 30 days or less in more than half the cases.

McFadden’s rebuke in Cudd’s case was narrowly directed at the sentencing of already convicted nonviolent Jan. 6 participants, not their prosecution. Still, his remarks echoed some conservative critics who have equated the attack on the Capitol with the episodic disruption caused by several hundred individuals arrested over 15 days in protests of Kavanaugh’s confirmation in September and October 2018.

In responding to similar arguments by Cudd attorney Marina Medvin in court, Assistant U.S. Attorney Laura Hill rejected the comparison.

“January 6th was unlike anything in American history,” Hill argued. “There was a vast amount of violence and destruction on January 6th that was not present on the days of the Kavanaugh protests. The Kavanaugh protesters were escorted out of the Capitol and the hearing continued. Congressmen and Congresswomen were not required to evacuate the building … They didn’t have to pause proceedings and continue into the early morning hours of the next day, after the building was secure.”

Prosecutors say they are trying to treat people fairly based on their individual conduct. But they also want to hold all accountable for participating in a mass crime in which the crowd made mob violence possible, emboldening and facilitating those who engaged in violence, overwhelmed police and escaped arrest by finding safety in numbers.

McFadden, who has denounced the Capitol riots as “a national embarrassment,” said in sentencing Cudd that in context, her unauthorized but peaceful entry into the Capitol during a riot was a minor violation.

“Many people did very bad things on January 6th and I think they are paying for them and will pay for those actions,” McFadden said, but Cudd’s actions “fall at the very minimal end.”

If anything, the judge said, her statements before and afterward anticipating the possibility of revolution, bloodshed and storming the Capitol with armed patriots while wearing bullet-resistant clothing were “certainly more troubling.”

“All that does suggest that you didn’t just get swept up in the moment, but you maybe wanted to be part of something violent from the outset.”

In court, Cudd said she regretted entering and adding her presence to those in the Capitol. She was willing to accept the consequences, she said, and wanted to continue her “family history of patriotism in a positive way.”

“I will make every effort never to break the law again in the future,” Cudd said.

McFadden said such comments suggested a lack of remorse: “This feels a little more like someone who wishes she hadn’t been caught, rather than someone who wishes she didn’t break the law.”