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‘The tip of this mob’s spear’: Prosecutors begin first Jan. 6 trial

When Guy Reffitt, a Texas militia member charged with storming the Capitol on Jan. 6, 2021, advanced on Congress, prosecutors say, he did it with specific targets in mind: Speaker Nancy Pelosi and Senate Majority Leader Mitch McConnell.

A Justice Department lawyer laid out the case against Reffitt in opening remarks Wednesday at Reffitt’s criminal trial, the first to emerge from the Jan. 6 attack — with the government describing the mob assault on Congress in stark, foreboding terms.

“The heart of democracy was attacked by a mob in what was the worst assault on the Capitol since the War of 1812,” Assistant U.S. Attorney Jeffrey Nestler told jurors. “The defendant was the tip of this mob’s spear.”

Before drawing out highly emotional testimony from a senior Capitol Police officer on duty on Jan. 6, Nestler showed jurors the jarring images of Reffitt standing amid the mob approaching the doors of the Capitol and later confronting police. Reffitt is charged with attempting to obstruct Congress’ effort to certify the 2020 election, carrying a firearm on Capitol grounds, illegally transporting a firearm and interfering with law enforcement officers. He’s also charged with obstructing justice by threatening his children to prevent them from reporting him to the FBI.

The trial is one of the most significant tests of the government’s yearlong investigation into the Capitol attack, one the Justice Department calls the most complex investigation in U.S. history. Nearly 800 people have been arrested for participating in the mob attack, some facing charges ranging from seditious conspiracy and obstruction to misdemeanor offenses like trespassing and picketing.

But Reffitt’s case stands out for his menacing actions at the foot of the Capitol and his incendiary exhortations to associates and other members of the mob to inflict punishment and pain on members of Congress. He helped lead an early charge against Capitol Police officers, which prosecutors say inspired the mob behind him to press forward.

“We’re taking the Capitol before the day is over, ripping them out by their hair — every fucking one of them,” Reffitt said on his own video as he attended then-President Donald Trump’s speech before the storming of the Capitol, the prosecutor declared after apologizing for using profanity in front of the jury.

“I just want to see Pelosi’s head hitting every fucking stair on the way out — and Mitch McConnell, too,” Reffitt added, according to Nestler, who strode back and forth in front of jurors as he read Reffitt’s remarks.

While Nestler’s opening extended to more than a half-hour, Reffitt’s attorney William Welch responded with a surprisingly short initial argument that lasted only three minutes.

“Guy Reffitt did not go in the Capitol. He did not break anything. He did not take anything,” Welch said. “Guy does brag. He exaggerates and he rants. He uses a lot of hyperbole and that upsets people. The evidence will show that this case has been a rush to judgment.”

Welch insisted that Reffitt “was not armed” and did not obstruct any arrests, and that he fell back as soon as he was pepper-sprayed by police during a confrontation that lasted only five minutes. “He never assaulted anyone. He never assaulted anyone. He did not help anyone else commit an assault,” said the defense attorney, a solo practitioner based in Columbia, Md.

However, Nestler promised jurors that a series of witnesses would help prove Reffitt’s guilt, including a fellow member of Reffitt’s Three Percenters militia, who will testify with immunity about traveling to Washington with Reffitt and the comments he made along the way.

“Like many people in our country, these Three Percenters were angry about the result of the 2020 presidential election,” Nestler said. “What makes this defendant stand out are the actions that he took.”

Jurors also began hearing searing testimony from Capitol Police officers who tried to repel Reffitt’s advance, as well as from at least one Secret Service official who helped protect then-Vice President Mike Pence as the mob breached the building and closed in on the Senate chamber, where he was presiding. A former Senate aide who was there that day is also slated to testify about the atmosphere in the chamber as the doors were locked and the mob neared.

The first witness, former Capitol Police Officer Shauni Kerkhoff, testified about her efforts to repel Reffitt from a banister on the west side of the Capitol, where he was trying to lead a crowd up a staircase to an entrance in the initial stages of the riot.

Kerkhoff recalled arriving on the scene on Jan. 6 and observing what she called a large and ”violent” crowd.

“I saw a sea of people,” the former officer said, as Nestler played videos of the defendant standing near the front of the crowd and seeming to wave it forward. “We were outnumbered … we were the only thing standing between these thousands of people and Congress.”

Kerkhoff said that she repeatedly ordered Reffitt to retreat but that he kept advancing and stirring up the crowd.

“It was becoming a dire situation,” she said. “They were calling us traitors … that they supported us and now we were betraying them.”

Kerkhoff said she felt “angry” when Reffitt called to the officers to let the crowd through.

“Why?” Nestler asked.

“Because it’s my job to stand in their way,” she said, adding that she was concerned that if the crowd got past them, they would reach members of Congress.

Kerkhoff said she wound up firing 40 to 50 pepperballs at Reffitt before officers turned to other techniques to try to repel him.

Kerkhoff’s demeanor in the courtroom was steely and clinical, but when asked to describe her tone as she called for backup that day, she described her tone as “panicked.”

Prosecutors made the scene more vivid for jurors by showing them actual pepperball and tear gas launchers similar to those deployed that day. They also played radio traffic in which Kerkhoff was desperately asking for help.

On cross-examination, Reffitt’s defense seemed to suggest that the defendant might have been so disoriented by the pepper spray that he wasn’t intending to battle with police or to wave his compatriots on. Kerkhoff said she’d been sprayed with pepper spray in training and found it “debilitating.”

“It’s very, very difficult to see with your eyes closed shut,” she said.

The most intensely emotional testimony came toward the end of the day Wednesday as Capitol Police Inspector Monique Moore testified about activity in the department’s command center on the day the Capitol was overrun.

After Nestler asked Moore to describe the mood in that center that day, the 24-year veteran of the force paused and began to tear up.

“The mood was in disbelief of what we were seeing,” said Moore, pulling out a tissue to wipe her eyes and declining the prosecutor’s offer of a break. ‘It was hard to hear my officers screaming on the radio — screaming for help,” she added.

Moore also said she was stunned to see the network of surveillance cameras show rioters “coming up into the Capitol with total disregard for the police, the law, the democracy.” She later described a series of video clips showing some of the most famous scenes of the riot, including members of the mob breaking down bike-rack barricades, smashing windows, forcing doors open and battling with police trying to seal off the Capitol from the adjacent visitor center.

Jurors are expected to hear Thursday from Jackson Reffitt, the defendant’s son, who reported his father to the FBI weeks before Jan. 6, 2021. Jackson later recorded conversations with his father in the days after Jan. 6 and shared them with authorities. He has also given a series of media interviews in the weeks and months since the Capitol attack.

During the prosecution’s opening argument, Nestler said Jackson made “a wrenching decision” to warn the FBI about his father’s potential for violence. “On Christmas Eve of 2020, he sent a tip to the FBI about his own father and about what his father planned to do at the Capitol,” the prosecutors said.

If convicted on all charges, Reffitt faces a maximum possible sentence of 60 years in prison. However, judges usually sentence defendants in accordance with federal guidelines that typically call for punishment well below the maximum. Reffitt would also get credit for the more than 13 months he’s spent in custody awaiting trial.

The trial is the first of what are likely to be dozens stemming from Jan. 6. But the vast majority of the almost 800 people charged in the Capitol Riot are likely to enter into plea-bargain deals with prosecutors and plead guilty. More than 200 already have, with most defendants receiving sentences ranging from probation to a few months in jail. A handful who pleaded guilty to serious assaults on police officers have received more severe sentences from eight months to over five years behind bars.

The Reffitt trial and a handful of others expected to go before juries in the coming months are being closely watched by both prosecutors and defense attorneys because these could serve as bellwethers for others.

The outcomes could set benchmarks by giving a sense of whether juries are ready to convict defendants or have doubts about the evidence or the wisdom of prosecuting crimes that arose from a political demonstration or harbor fairness concerns about trying frontline offenders while not charging political figures who inspired the unrest.

The sequence in which Jan. 6 cases will reach trial is largely outside the government’s control, but the Reffitt case is a useful lead-off bid for prosecutors, combining many of the most troubling elements that characterized the attack on the Capitol.

The claims that Reffitt brought at least one firearm to the Capitol, that he skirmished with Capitol Police officers, that he belonged to a fringe, right-wing militia group and talked about future violence are all among the most concerning aspects prosecutors have cited in the more than 750-plus Jan. 6 prosecutions.

Testimony from Capitol Police officers who witnessed his actions and in some cases sought to beat back his advance — much of it caught on camera — will be among the most searing evidence prosecutors present.

The case is also far less complex than the attention-grabbing conspiracy cases the Justice Department has brought against alleged members and affiliates of militant groups such as the Oath Keepers and Proud Boys — whose trials are still likely several months away.

Earlier this year, a grand jury indicted 11 Oath Keepers with seditious conspiracy, including the group’s founder, Stewart Rhodes.

Most of those defendants were charged with other offenses early last year and have been awaiting trial, but Covid-related restrictions have complicated the planning.

The U.S. District Court for Washington, D.C., has been operating under strict rules limiting the number of people in individual courtrooms, making jury trials a logistical headache. Such trials were suspended altogether for about a year following the initial outbreak and for another month and a half due to the Omicron variant.

Trials resumed again last month, but with social-distancing that has courtrooms reconfigured with jurors sitting in the gallery and witnesses testifying from the jury box. Those rules were relaxed further Wednesday, as the pandemic subsides. Judge Dabney Friedrich had planned to bar all press and public from the courtroom, but allowed three observers on Wednesday after media organizations asked an appeals court to order in-person access.

Even under normal conditions, it would be a challenge to accommodate a multi-defendant trial at the Prettyman Courthouse near the Capitol. Only one courtroom there could readily host a trial for more than a few defendants at once and staging such a trial under the anti-Covid precautions in effect in recent weeks would effectively block any other trial from getting underway in the entire building.

The Reffitt case, while simple by comparison, still poses some challenges for the government.

While jurors are expected to hear that Reffitt boasted of bringing a gun to the Capitol, prosecutors have also said they want jurors to infer the presence of the gun from photos that show a bulge under his jacket, a holster and something glinting in it. The defense is also expected to argue that the threats Reffitt is accused of making to his children were not serious. Peyton Reffitt, the defendant’s daughter, testified at a bail hearing last year that her father was prone to extreme statements and that she did not think he would follow through on his threat.

Following the opening statements, the trial was delayed for more than an hour due to technical glitches, including a lack of a video feed of exhibits to overflow courtrooms and a media room.

Friedrich, an appointee of Trump, interviewed 56 potential jurors over two days this week before seating nine men and seven women as jurors and alternates in the case.

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