Chrestman’s lawyers pointed to several Supreme Court cases they said indicated that advice from government officials can sometimes be a defense to criminal charges. They said Trump’s encouragement amounted to that kind of foresight for those who broke into Capitol Hill during the Electoral College vote count on Jan.6.
“Only someone who thought they had official approval could even attempt such a thing. And a Proud Boy who had paid attention would really believe it, “Chrestman’s attorneys Kirk Redmond and Chekasha Ramsey wrote in a court file last week.
Defense attorneys also cited Senate Minority Leader Mitch McConnell’s statement following Trump’s impeachment trial that those who besieged Capitol Hill “thought they were doing what they wanted and wanted. instructions from their chairman ”.
Howell called the defense argument “very interesting,” but it quickly became clear that she was deeply skeptical of its legal merit. Highlighting Trump’s famous comment during the 2016 campaign that he could shoot someone on 5th Avenue in New York and get away with it, she asked defense attorneys to assess the implications of their position. .
“If President Trump ordered or instructed a member of the Proud Boys [to] going to murder someone and someone left and did that, it follows that … would immunize them from any liability for this criminal act? … In fact, isn’t that what your argument says? the judge asked Redmond.
“I do not think so. … This is not going to extend to all defendants, ”Redmond replied.
Howell said a 1965 Supreme Court case that Chrestman’s team cited, Cox v. Louisiana, involved the question of where protesters could stand on a sidewalk and was nothing like closing a joint session of Congress. “In this case, I would say that an instruction from a federal official to disrupt a constitutionally mandated function is very different from an administrative decision of the traffic type,” the judge said.
Chrestman faces a slew of felony charges, including conspiracy to interfere with police during civil unrest and to obstruct formal proceedings. He is also accused of threatening the police by carrying a dangerous weapon. Prosecutors say he wielded an ax handle during the riot, using it to block emergency shutters that police were trying to close for protection. They also say he urged the crowd to prevent police from arresting one of the protesters.
Last week, a federal investigating judge in Kansas City, Kan., Ordered the release of Chrestman from house arrest pending trial. On Sunday, however, Howell allowed the government’s request to stay the release order while she considered the matter.
Howell ruled for the release of two defendants the government wanted to detain, while temporarily blocking a series of releases by magistrates across the country and ultimately ordering some of those people to be held until their trial or other resolution. their cases.
At the end of Tuesday’s hearing, Howell said it was obvious to her that Chrestman was in the category where he shouldn’t be released.
“He cannot be trusted to respect the conditions of release that the court might impose instead of pre-trial detention,” said the judge. “I don’t think this case is a close call at all.”
Howell said that the fact that Chrestman came to DC with “a gas mask, hard hat and club” strongly suggested that he expected a violent confrontation. She also said her connection to the Proud Boys group meant he was dangerous.
“You call it an organization. I call it a gang, ”the judge told Redmond. “The fact that [Chrestman] continues to be a member of the Proud Boys, is that danger enough, isn’t it?
In numerous bail hearings in cases related to the riots on Capitol Hill now inundating the courthouse, just blocks from the site of the January 6 violence, the chief justice has at times strongly condemned the attack and lamented how the episode disrupted life in the country. the city and the country.
This was again the case on Tuesday as Howell lamented the security fences and the deployment of National Guard troops, while observing that Chrestman’s trip to Washington last month had not been viewed as an ordinary tourist.
“He did not intend to visit the sites, which are now completely off-limits to citizens living in this city, surrounded by barbed wire,” said the judge. “He didn’t come to walk around the reflecting pool and look at the sites and monuments.”
Howell – who worked for years as an attorney for the Senate Judiciary Committee before being appointed to the bench by President Barack Obama in 2010 – hinted that she was anxious to see these security horrors removed but did not know not when or if that would be certain. do this.
“The people who want to come and visit DC, the Americans who want to visit their Capitol, are they ever going to be able to walk where we walked freely?” she asked. “It’s not clear, shocking.”