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 M. Kavanaugh.
“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, 2021, 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 Wednesday in sentencing Capitol riot defendant Jenny Cudd, a 37-year-old florist and onetime Republican mayoral candidate from Midland, Tex., 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 months’ probation and a $5,000 fine, contrasting her case with that of Tighe Barry, an activist with the liberal advocacy group Code Pink.
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, who added that Barry, a frequent demonstrator with 14 prior arrests, had 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 he 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 similar to nonviolent protesters who routinely disrupt congressional hearings or 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 of probation and 100 hours of 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.
As it happens, McFadden on Friday sentenced another Jan. 6 defendant to 10 days in jail for a different misdemeanor offense — stealing government property in the form of microphones belonging to the office of House Speaker Nancy Pelosi (D-Calif.). He said the case of New Jersey resident Robert Petrosh, who served in the Marine Corps, featured more aggravating factors.
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 — which forced the evacuation of Congress, injured scores of police officers, caused $1.5 million in damage, and impeded confirmation of the 2020 presidential election results — 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 E. Hill rejected the comparison.
“January 6 was unlike anything in American history,” Hill argued. “There was a vast amount of violence and destruction on January 6 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.”
Judges appointed by presidents of both parties have condemned the siege of the Capitol as a unique destabilizing event and weighed jail terms as a way to deter defendants and others from a repeat.
“When a mob is prepared to attack the Capitol to prevent our elected officials from both parties from performing their constitutional and statutory duty, democracy is in trouble,” U.S. District Judge Randolph D. Moss, an Obama appointee, said last summer. “The damage that [the defendant] and others caused that day goes way beyond the several-hour delay in the certification. It is a damage that will persist in this country for decades.”
“Many politicians are writing a false narrative about what happened. I think they are misleading people,” U.S. District Judge Thomas F. Hogan, a Reagan appointee, said in another case this month. Warning that attempting to whitewash or play down events could lead to future violence, Hogan called Jan. 6 an “unforgivable” day that will “affect this country for many years.”
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 6, 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,” he said.
Cudd celebrated property destruction, boasting on a Facebook live stream afterward, “We did break down … Nancy Pelosi’s office door!” and saying she was in a crowd that did “push, push” against police until officers gave way without violence to a Capitol entrance, prosecutors said.
“Hell yes, I am proud of my actions,” Cudd continued on Facebook, draped in the Trump flag she’d worn inside the Rotunda and Statuary Hall, adding that said she “charged the Capitol today with patriots.”
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.”
Cudd and co-defendant Eliel Rosa were charged Jan. 12 and arrested a week after the riot. In a sign of how his views have changed since then, McFadden in October sentenced Rosa to a longer term of probation that Cudd — one year — even though he was charged with a lesser offense, turned himself in to the FBI and expressed greater contrition.
McFadden said last week that Cudd’s aggravating factors were offset by the threats and hate mail she said she had received, the defacing of her flower shop, and letters sent on her behalf attesting to her kindness and decency.
“It is clear to me that your conduct on January 6 was a strange aberration for you,” McFadden said, noting she had already paid $500 in restitution. “I’m not concerned that you are going to reoffend. And I think the most important thing you can do now is to start repaying the country for the damage that you in a small but significant way helped cause.”
Rachel Weiner contributed to this report.