Opinion | Trump Appointees Are Undermining Jan. 6 Prosecutions — And Our Justice System

This week brought the first outright acquittal of one of the roughly 800 defendants who have been charged by the Justice Department for their actions on Jan. 6, 2021. Federal prosecutors in the District of Columbia had charged Matthew Martin with four misdemeanor offenses stemming from his presence in the Capitol that day, but after a two-day bench trial, the presiding judge concluded that Martin’s defense — that he believed police had allowed him to enter the building — was at least “plausible.”

The acquittal was courtesy of one of several Trump-appointed judges who, in recent months, have been making highly questionable decisions while presiding over various Jan. 6 prosecutions. The decisions are so out of step with the decisions of most of their colleagues — and in some cases even common sense — that these judges are undermining both the appearance and reality of an apolitical judicial approach to these cases. It’s a troubling development for a branch of the federal government that’s already plagued by partisanship at the appellate and Supreme Court levels.

The judge who presided over Martin’s trial was Trevor McFadden, who was appointed to the court in 2017 after briefly serving as a senior official in former President Donald Trump’s Justice Department and, earlier in his career, as a line prosecutor in the district. He is the same judge who has repeatedly raised questions about whether the Jan. 6 defendants are being treated more harshly than protesters in the wake of the George Floyd killing in 2020, even though, on the whole, the Jan. 6 defendants have been treated relatively well in the context of the federal criminal justice system. He is also the same judge who recently rendered a split verdict in another misdemeanor Jan. 6 case after needlessly forcing the government — over prosecutors’ strenuous objections given the security implications — to disclose where in the Capitol the Secret Service took Vice President Mike Pence in order to protect him during the siege.

In the recent acquittal, McFadden rejected prosecutors’ claim that Martin should have understood that he was not allowed in the Capitol during the riot. Citing video presented at the trial, McFadden said, “People were streaming by and the officers made no attempt to stop the people.” I was not at the trial to see the evidence presented, but McFadden’s position is very hard to square with the visible chaos at the Capitol complex on Jan. 6, which should have led reasonably intelligent people to understand that they were not, in fact, allowed to overrun the grounds with thousands of other people and to roam freely while Congress and the vice president attempted to perform their constitutional duties to ensure the orderly transfer of presidential power.

McFadden is not the only Trump-appointed judge whose judgment has been very questionable in the Jan. 6 prosecutions. Judge Dabney Friedrich presided over the first trial and barely let the government proceed on its central theory — that the defendant, Guy Reffitt, had corruptly obstructed Congress’ certification of the electoral votes. The jury ultimately found him guilty within a matter of hours since, among other things, he had brought a weapon to the Capitol grounds and goaded a mob to overtake a small number of Capitol police officers who were trying to hold them at bay — all of which was captured on video. During the trial itself, Friedrich repeatedly criticized the government for ridiculous reasons — complaining early on, for instance, about how long the trial was taking even though several days had been eaten up by the judge’s inefficient jury selection process and the courtroom’s technology deficiencies.

Meanwhile, Judge Carl Nichols — who is also overseeing the contempt-of-Congress case against Steve Bannon — recently became the first (and thus far only) judge in the district to dismiss the Justice Department’s obstruction-of-Congress charge before trial. His opinion — which concludes that the relevant statutory provision only prohibits obstruction “with respect to a document, record, or other object” — is borderline incomprehensible and relies on very strained interpretive inferences that Nichols purportedly drew from the text and structure of the statute. The decision reads more like an opinion whose conclusion was predetermined rather than a careful and thoughtful legal analysis. (Perhaps not coincidentally, Trump’s legal defenders have used a similarly cramped view of the same statute to argue that Trump cannot be charged with obstruction of justice based on his actions to impede the Mueller probe.)

In the Bannon prosecution, Nichols recently ruled that Bannon cannot rely on the advice of his lawyer as a defense to the contempt charge (based on controlling precedent in the D.C. Circuit Court of Appeals), but before that, he ordered the Justice Department to provide internal documents about the government’s decision to prosecute Bannon. As a general matter, it is highly unusual for a judge to direct prosecutors to provide information along these lines, since, among other things, there are legal privileges and protections that insulate this material from disclosure and a policy to the contrary could chill good faith, internal deliberations among government officials. If there were meaningful evidence that might support a serious claim of selective prosecution, that would be one thing, but Bannon has no such evidence.

There was a time when the work of being a federal trial judge was regarded as largely apolitical. Most cases at the trial level — particularly criminal cases, which are in large part just drug, gun and illegal immigration prosecutions — are resolved using mostly settled and uncontroversial legal rules and principles. It was not that unusual even during the Trump years to see appointees from prior Republican presidents rule against Trump on high-profile issues, like the district judge who was appointed by George W. Bush and ruled against the administration’s effort to end the Deferred Action for Childhood Arrivals program, or the Bush appointee who put an end to the Trump administration’s family separation policy.

The recent and very dubious decisions by Trump appointees in criminal cases stemming from Jan. 6 seem to confirm some of the concerns that many observers had about the quality and intellectual independence of Trump’s appointments to the federal trial courts. This points to a disconcerting possibility that we may have entered a new era in which the judiciary at even the lowest levels operates in a politicized manner in important cases. At the Supreme Court, there is at least the veneer of a broad and (debatably) consistent conservative legal philosophy that undergirds Republican appointees’ decisions. But the actions of the Trump appointees in these Jan. 6 prosecutions seem to suggest that the outcome for defendants at the trial level could in some cases depend less on the merits of the arguments and more on the political persuasion of the presiding judge — which is, to say the least, very bad for the concept of equal justice under the law.

Unfortunately, there is no readily available solution to this problem. It may just be one more unfortunate and potentially irreversible legacy of the Trump years. But we do not have to pretend that this is simply business as usual.