A federal judge on Tuesday convicted Cowboys for Trump founder Couy Griffin of trespassing in the Jan. 6, 2021, attack on the Capitol, handing the Justice Department its second victory at trial in the probe and affirming its use of an unusual misdemeanor charge against breach participants who, like Griffin, were not violent.
U.S. District Judge Trevor N. McFadden found Griffin, who is also an elected New Mexico county commissioner, guilty of illegally entering or remaining on restricted grounds after a one-day bench trial, and not guilty of a second misdemeanor count of disorderly conduct. Each charge was punishable by up to one year in jail.
Griffin, who attended proceedings in a black cowboy hat, left the courthouse in D.C. echoing former president Donald Trump’s baseless claims that the 2020 election was stolen. He continued to claim he was a victim of political persecution — although his judge was appointed by Trump in 2017 and served as a Justice Department criminal division official in the Trump and George W. Bush administrations.
McFadden set sentencing for June 17, after defense attorney Nicholas D. Smith declined an offer for immediate sentencing.
The judge’s verdict bolstered U.S. prosecutors’ decision to charge about half of the more than 750 people arrested to date in the Capitol siege with misdemeanors only if they did not assault police, damage property or act to obstruct the proceedings of Congress. More than 220 individuals have pleaded guilty so far, most of them to a petty offense of misdemeanor parading, picketing or demonstrating punishable by no more than six months in jail.
But in charging documents and plea talks, prosecutors have also deployed stiffer misdemeanor charges against those accused of more egregious or disruptive conduct than passing quietly through restricted areas, or, in a small number of cases like Griffin’s, did not enter the Capitol.
In the first trial of a felony defendant earlier this month, a jury deliberated barely two hours before finding Guy Reffitt guilty on all five counts, convicting the recruiter for a self-styled Texas militia movement of felony charges including obstruction of an official proceeding, witness tampering and interfering with police in a riot.
Griffin’s trial posed a different legal test, requiring U.S. prosecutors to prove that the defendant knowingly breached a restricted area where then-Vice President Mike Pence or others receiving Secret Service protection were or would be present. McFadden found they did, after forcing the Secret Service to publicly confirm for the first time that Pence was evacuated to an underground Senate loading dock and remained there for four to five hours on the afternoon of Jan. 6. The Justice Department had initially asserted that disclosing Pence’s whereabouts could jeopardize national security interests.
Assistant U.S. Attorneys Janani Iyengar and Kimberly Paschall also cited a video Griffin posted of himself on the inauguration stage next to the Capitol during the riot that forced the evacuation of lawmakers meeting to certify Joe Biden’s election victory.
Other evidence recorded by a videographer Griffin brought with him to Washington showed him climbing over a stone wall that marked the Capitol’s security perimeter and walking over trampled plastic mesh fencing and dismantled bicycle rack barriers. The video also showed he spent more than an hour on the front railing of the inaugural stage with a bullhorn, ignoring the lingering odor of police-deployed pepper spray and leading the crowd below in prayer.
“He [Griffin] crossed over three walls,” McFadden said. “All of this would suggest to a normal person that perhaps you should not be entering the area.” The judge added that Griffin said in videos he recorded the next day and Jan. 14 that he joined a crowd that “pushed through” fencing into areas “roped off” by police for the inauguration.
But McFadden acquitted the defendant of disorderly conduct, finding prosecutors had not proved he was acting knowingly to disrupt a government proceeding. The judge citied Griffin’s recorded statements saying that by the time he arrived on the grounds at 2:31 p.m., he erroneously thought Pence and Congress had already certified the election.
Griffin “could have thought business was still taking place, but the burden was on the government” to prove it beyond a reasonable doubt, McFadden said.
Griffin was arrested when he returned to Washington on Jan. 17, 2021, after saying during an Otero County Commission meeting that he planned to return for Biden’s inauguration with his .357 Henry Big Boy rifle and single action revolver. He had also rhetorically suggested that the blood of political foes could be spilled at the Capitol in defense of the right to bear firearms.
He turned down an offer to plead to a lesser charge and probation, waived a trial by jury and took his chances with McFadden.
Griffin’s defense argued there was no evidence that he saw any “Do Not Enter” sign, was told by police that any area was restricted or knew that Pence was present at the Capitol the same time he was. Smith argued that one could find the events of Jan. 6 “embarrassing and shameful,” but also conclude that it was “offensive and wrong” to selectively prosecute and convict Griffin for exercising his freedom of speech and leading a prayer.
“It would be one thing if he were arrested for assaulting someone, for planning to enter the building, for threatening members of Congress inside. But he’s being prosecuted for standing on the steps,” a place a federal appeals court has declared to be a public forum, Smith said.
McFadden rejected that contention before trial, finding that Griffin’s alleged leadership role, more blatant conduct and position as an elected official might rationally merit different handling by prosecutors. While reading his verdict, he said Griffin “was not on the steps. He’s on the [inauguration] stage,” while police worked to restore order for hours.
“Nobody thinks a random tourist could sort of climb up there, right?” McFadden said.
The judge also said it would be “preposterous” to require the Secret Service, before it could enforce a given security perimeter, to announce in advance that a person under its protection was present.
“What kind of security issues does that raise if the Secret Service is required to tell people who is in a restricted area, for the restricted area to have teeth?” McFadden asked.
Griffin is one of at least 10 people charged in the riot who either held public office or ran for a government leadership post in the 2½ years before the attack, according to an Associated Press tally.
The Washington Post has reported that at least 163 Republicans who have embraced Trump’s false claims are running for statewide positions that would give them authority over the administration of elections. The list includes 69 candidates for governor in 30 states, as well as 55 candidates for the U.S. Senate, 13 candidates for state attorney general and 18 candidates for secretary of state in places where that person is the state’s top election official.
A former Disneyland Paris rodeo cowboy and self-styled preacher, Griffin is a stonemason and racial provocateur whose use of social media won him plaudits from Trump and an invitation to the Oval Office.
Griffin’s mockery of Native American rites got him banned from Mescalero Apache Tribe lands. He condemned people who view the Confederate flag as racist as “vile scum.” In July 2020, when the National Football League began playing “Lift Every Voice and Sing,” what is referred to the Black national anthem, before games, Griffin suggested that players “go back to Africa and form your little football teams over in Africa and you can play on a[n] old beat-out dirt lot and you can play your Black national anthem there.”
Griffin won election in 2018 with 65 percent of the vote but is not seeking reelection. He has supported a $50,000 taxpayer-funded audit of the 2020 election results in the small conservative county, whose 24,000 votes Trump carried by 25 percentage points.