Dozens of Capitol rioters detained ‘in breach of constitution’

The lawyer for five of those awaiting trial says they’re being held as a political punishment by a far-left judiciary.

One of Joseph’s McBride’s clients is Richard Barnett, pictured in Nancy Pelosi’s office on the day of the riot. Picture: AFP

Dozens of January 6 rioters have been detained unconstitutionally without trial for more than eight months, as political punishment by a far-left judiciary, according to Joseph McBride, the New York lawyer who is representing five of them.

As US Attorney-General Merrick Garland warned rioters the Department of Justice would leave no stone unturned to see them prosecuted for the rampage that left one police officer and at least four protesters dead, Mr McBride told The Australian the trials had turned into a witch hunt.

“The justice system is not supposed to be politicised, judges are not supposed to be making partisan or influenced decisions. But especially in DC, they are making up law as they go along, not applying previous precedent. It’s un-American and unconstitutional,” he said.

None of the 725 individuals arrested for their participation in the riots have yet been charged with insurrection, the bulk face misdemeanour crimes such as entering a public building uninvited, and some more serious charges of assaulting or impeding police officers.

“You can punch a cop in the US dead in his face and in 99.9 per cent of cases, if you aren’t a flight risk or dangerous to the community, you’ll be let out until trial,” Mr McBride said.

Mr Garland, in a rare address at the Department of Justice in Washington a day before the anniversary of the riot, said he was “committed to holding all January 6 perpetrators at any level accountable under law, whether they were present that day or otherwise criminally responsible for the assault on our democracy”.

“So far, we have issued over 5000 warrants and subpoenas, seized 2000 devices, watched 20,000 hours of video footage, searched over 15 terabytes of data, and received 300,000 tips from ordinary citizens,” he said on Wednesday (Thursday AEST), in a rare address at the state department.

Among defendants who have been sentenced to incarceration, the median term was 45 days, according to a separate analysis by Politico this week.

For Mr McBride, the pre-trial detention was the injustice.

“Significant case law says pre-trial detention past eight months is objectively unacceptable, and of course there are ethical, and international legal reasons why it’s wrong,” he said, claiming “40 to 50” people have been detained beyond these limits in the District of Colombia alone.

“Covid-19 has been weaponised by the Justice department; these cases are usually wrapped up weeks or months this is taking over a year and could take several years,” he added.

The justice department decline to comment on the claims.

Mr McBride’s clients include Richard Barnett, who infamously put his feet on House Speaker Nancy Pelosi’s desk, Victoria White, who claims she was beaten by officers, Christopher Quaglin and Ryan Nichols, who have been in jail more than 8 months awaiting trial, and Daniel Goodwyn, a member of the right-wing nativist organisation Proud Boys.

More than 725 of the upwards of 100,000 protesters outside the Capitol had been charged, Mr Garland revealed, including 145 who had pleaded guilty to misdemeanours.

Over 325 of those arrested across the country have been charged with felonies (more serious crimes), the bulk of which under the 2002 Sarbanes-Oxley Act, passed in the wake of the Enron collapse to stamp out financial crime, as prosecutors scramble to find legislation that provides tougher penalties.

“In months ahead, 17 are scheduled to go to trial … as long as it takes and whatever it takes for justice to be done consistent with the facts and the law,” Mr Garland said.

The Attorney-General said the January 6 investigation was “one of the largest, most complex and resource intensive investigations in our history”, pointing out that around 140 US prosecutors, half of them in DC, were participating.

Mr McBride said the resourcing was “bizarre” the given other potential crimes and targets.

“Think about 9/11, Kennedy’s assassination, the big mafia cases, this trumps all that, it’s the biggest DOJ investigation ever,” he said, suggesting the recriminations had were in contrast to the relatively lax attitude to following up Black Lives Matter protesters from 2020.

District of Columbia judges, among the most “liberal” in the country, appeared to be pushing for tougher penalties than the Department of Justice, according to the Politico investigation.

“There have to be consequences for participating in an attempted violent overthrow of the government beyond sitting at home,” said Judge Tanya Chutkan in October, sentencing a rioter to 45 days in prison when the prosecution had asked for 3 months home confinement.

Judge James Boasberg, another DC judge, was annoyed jail time had not been requested for a Gary Edwards, who was charged with illegally entering the offices of Democrat Senator Jeff Merkely.

“There is a strong argument that anyone who was there that day deserves jail,” the judge said in trial.

Mr McBride said social media companies had thwarted his attempt to raise money from donations for his clients’ cases.

“Go Fund Me has banned us; we can’t PayPal or Facebook, they don’t want us to raise a war chest,” he said.