“The steady drumbeat that inspired defendant to take up arms has not faded away; six months later, the canard that the election was stolen is being repeated daily on major news outlets and from the corridors of power in state and federal government, not to mention the near-daily fulminations of the former President,” U.S. District Judge Amy Berman Jackson wrote recently in denying bond to a Colorado man. The man is accused of driving to D.C. with two firearms and thousands of rounds of ammunition after threatening to kill House Speaker Nancy Pelosi (D-Calif.) and D.C. Mayor Muriel E. Bowser (D).
Although Trump has been blocked from major social media platforms and recently shut down his own blog, he is still monitoring and promoting false claims of election fraud. Citing Trump’s ongoing comments, federal judges have shared fears that those defendants accused of the worst violence or threats of violence that day remain a danger to public safety.
“Unfortunately,” said Judge Amit Mehta in detaining a man accused of throwing a hatchet and a desk during the riot, the “political dynamics that gave way to January 6th have not faded.”
In keeping a Trump supporter and felon in jail in Michigan pending trial, Jackson highlighted a message in which the man said he was in D.C. on Jan. 6 because “Trump’s the only big shot I trust right now.”
The man has been charged with obstructing a congressional proceeding and related crimes, and his “promise to take action in the future cannot be dismissed as an unlikely occurrence given that his singular source of information . . . continues to propagate the lie that inspired the attack on a near daily basis,” Jackson wrote.
At least half a dozen defendants detained on riot-related charges have been released in recent weeks in part by arguing that the insurrection was a singular event that could not be re-created. That argument was upheld by the U.S. Court of Appeals for the District of Columbia, which found that the dangerousness of any individual defendant had to be considered in light of the fact that “the specific circumstances of January 6” created “a unique opportunity to obstruct democracy.”
Judge John D. Bates on April 12 agreed to release a former State Department employee who joined the mob pushing back against police in a tunnel under the Capitol, saying that “the specific concerns in the wake of the January 6 events over future protests and violent attacks on the government . . . have dissipated to some degree.” He noted that despite concerns, there was no attempt to attack President Biden on Inauguration Day or to seize the government on March 4, the day some conspiratorial supporters believed Trump would retake office.
“The threat to public safety must be continuing and prospective,” Bates wrote.
Trump said through attorneys in a recent civil court filing that he bears no responsibility for the events of Jan. 6. Allowing a lawsuit brought by Democratic members of Congress to go forward, they wrote, “would essentially hold politicians vicariously liable for the actions of their supporters, substantially chilling critically important political speech.”
The former president has remained fixated on Republican-led efforts to put him back in office. Republicans in Arizona and Georgia have gotten permission to inspect ballots, and Trump supporters in other states are pushing similar “audits.” Republican state legislators nationwide also have introduced bills echoing Trump’s false fraud claims as justification for new voting restrictions. Trump and his former personal lawyer Rudolph W. Giuliani have been directly encouraging some of those lawmakers.
“The Court is not convinced that dissatisfaction and concern about the legitimacy of the election results has dissipated for all Americans,” Judge Emmet G. Sullivan wrote in an April 20 ruling denying bond for a man accused of beating a police officer with a crutch and dragging the officer into the crowd. “Former President Donald J. Trump continues to make forceful public comments about the ‘stolen election,’ chastising individuals who did not reject the supposedly illegitimate results that put the current administration in place.”
Sullivan cited a statement Trump released on Easter, wishing a happy holiday to “the Radical Left CRAZIES who rigged our Presidential Election,” along with reporting on a speech the former president gave to donors criticizing other Republicans for not keeping him in power.
The judge raised the same comments in denying bond to physicist Jeffrey Sabol, who, according to court records, dragged an officer down the steps and used a baton to hold him down. In court, Sabol’s attorney argued that his client now realizes that he was “lied to” about the election. But given Trump’s recent comments, “there is ample reason to believe that fight is not finished for Mr. Sabol and others like him, making the threat of further violence present, concrete, and continuing,” the judge wrote.
Sabol is not the only one behind bars despite repudiating Trump.
“I’ve got some of my good friends and myself facing jail time cuz we followed this guy’s lead and never questioned it,” Ethan Nordean wrote on the encrypted messaging service Telegram on Inauguration Day, according to prosecutors. “We are now and always have been on our own.”
Nordean’s attorneys argued that the message is evidence that he is no longer interested in political protest. But prosecutors argued, and a judge agreed, that the message showed that Nordean was a leader in the Capitol attack and could marshal fellow members of the far-right Proud Boys group in the future.
“Even if the election has passed,” Judge Timothy J. Kelly said at a hearing in April, “all of politics has not.”
Joseph Hurley, who represents a Capitol defendant who is out on bond, said it is fair for judges to weigh Trump’s words in detention decisions — “to the extent that there has not been a complete denial of the lack of reasoning and stupidity that led them to be involved.”
He said Anthony Antonio, his client, was “no longer infected” by belief in the former president. Although at the beginning of the riot Antonio taunted police and proclaimed that it was “1776 all over again,” by the end, Hurley said, he was pleading with others to be peaceful and now considers Trump “a liar.”
But, Hurley said, when “Trump keeps beating that drum, he keeps firing them up . . . the burden is on them to convince the judge” that they aren’t listening.
Richard Wilson, a professor at the University of Connecticut who studies international speech crimes, disagrees. He said the onus is on the courts to carefully consider over time whether the danger has passed.
“If there’s a continued risk that’s a high level of risk, and it’s imminent, and there is continued incitement by leading individuals from in around the Trump administration,” he said, caution makes sense. “But I think the power and influence is waning all the time. . . . Donald Trump might be out there for a very long time, and people can’t be detained indefinitely.”