A Court Made It Harder For Prosecutors To Keep Capitol Riot Defendants Behind Bars
Posted On March 26, 2021
WASHINGTON — A federal appeals court on Friday revived a detention fight over two people charged in the Capitol insurrection and, for the first time, laid out standards that will make it harder for prosecutors to keep alleged rioters behind bars if they’re not charged with assaulting police, conspiracy, or destroying property.
In a 2–1 decision, the US Court of Appeals for the DC Circuit ordered a lower court judge to reconsider his decision to keep Eric Munchel and his mother, Lisa Eisenhart, in jail while their cases go forward. US District Judge Royce Lamberth had ruled in February that Munchel — who was photographed inside the Capitol wearing tactical gear and holding plastic zip-tie handcuffs — and Eisenhart presented “a clear danger to our republic” and that there were no release conditions that would “reasonably ensure the safety of the community.”
But DC Circuit Judge Robert Wilkins wrote Friday that Lamberth’s 17-page opinion failed to articulate how the two posed a danger when they hadn’t actually been charged with committing specific violent acts at the Capitol on Jan. 6. Lamberth wrote that the allegations against Munchel showed that he was “willing to use force to promote his political ends,” but the appeals court found that the judge didn’t explain how he reached that conclusion when there was no evidence Munchel hurt anyone or broke anything.
“In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way,” Wilkins, joined by Judge Judith Rogers, wrote.
Munchel and Eisenhart will remain in jail as the case goes back to Lamberth for another round of arguments.
Friday’s opinion marks the first time the appeals court has weighed in with a specific framework for how lower court judges should think about pretrial detention in the Capitol riot cases. The decision sets precedent that is now binding on all of the district court judges in DC and moves the bar higher for the government to successfully argue for pretrial detention for other defendants who, like Munchel and Eisenhart, aren’t charged with assaulting police, property destruction, or conspiracy and have minimal or no previous criminal record.
“It cannot be gainsaid that the violent breach of the Capitol on January 6 was a grave danger to our democracy and that those who participated could rightly be subject to detention to safeguard the community,” Wilkins wrote. “But we have a grave constitutional obligation to ensure that the facts and circumstances of each case warrant this exceptional treatment.”
The ruling had an immediate ripple effect — just over an hour after the DC Circuit released the opinion, a district judge hearing arguments about pretrial detention for one of the defendants charged in the Oath Keepers conspiracy case asked lawyers for the government and the defense to address the appeals court’s new precedent.
The vast majority of the more than 300 people charged in the insurrection have been allowed to go home post-arrest while their cases go forward with no objection from the government. The US attorney’s office in Washington has mostly focused its requests for detention on cases that involve allegations of assault on police, conspiracy and advance planning, and destruction of property. But in some cases, prosecutors have argued that a defendant’s actions on Jan. 6 had sufficiently violent overtones or that they’d made threats of future violence that justified keeping them behind bars.
In Munchel and Eisenhart’s case, prosecutors argued Munchel grabbed the plastic handcuffs after finding them in the Capitol “comprehending that they are instruments of restraint and kidnapping.” The government cited video that Munchel recorded on Jan. 6 that captured him saying he was “Fucking ready to fuck shit up.”
Lamberth wrote in his February opinion that Eisenhart was “a self-avowed, would-be martyr,” noting that after the riot she gave a media interview in which she said that she would “rather die as a 57-year-old woman than live under oppression” and “would rather fight.”
As for the fact that neither defendant was charged with specific violent acts, Lamberth wrote that the “portrayal of the alleged offenses as mere trespassing or civil disobedience is both unpersuasive and detached from reality.”
“Storming the Capitol to disrupt the counting of electoral votes is not the akin to a peaceful sit-in,” he wrote.
But Wilkins wrote that district judges had to consider a defendant’s dangerousness and potential threat to the community if allowed to go home “in context.” He wrote that Lamberth failed to show how Munchel and Eisenhart posed a danger to Congress going forward “now that the specific circumstances of January 6 have passed.”
“The appellants had a unique opportunity to obstruct democracy on January 6 because of the electoral college vote tally taking place that day, and the concurrently scheduled rallies and protests,” Wilkins wrote. “Because Munchel and Eisenhart did not vandalize any property or commit violence, the presence of the group was critical to their ability to obstruct the vote and to cause danger to the community. Without it, Munchel and Eisenhart — two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities — seemingly would have posed little threat.”
Judge Gregory Katsas wrote a partial dissent, but only to go even farther than his colleagues in saying that he would have ordered pretrial release for Munchel and Eisenhart right away, instead of sending the case back to Lamberth for another round of arguments. A federal magistrate judge had originally agreed to release Munchel and Eisenhart to home confinement with location monitoring, and Katsas wrote that Lamberth “gave no plausible explanation for why these stringent conditions would not reasonably ensure public safety.”
“Their misconduct was serious, but it hardly threatened to topple the Republic. Nor, for that matter, did it reveal an unmitigable propensity for future violence,” Katsas wrote.
Judges will often reject the suggestion that the party of the president who nominated them has any bearing on their decisions. But the ideological diversity of the panel in Munchel and Eisenhart’s case — which was unanimous in pushing back against the government — is notable given the politically charged context around the Capitol insurrection cases. Wilkins was confirmed under former president Barack Obama, Rogers was confirmed under former president Bill Clinton, and Katsas was confirmed under former president Donald Trump.
Lawyers for Munchel and Eisenhart and a spokesperson for the US attorney’s office in DC did not immediately return requests for comment.