The second trial stemming from the Jan. 6, 2021, attack on the Capitol is shaping up to be a lot less of a slam dunk for the Justice Department than the first.
The case of Couy Griffin, a New Mexico county commissioner and founder of Cowboys for Trump, looks to be among the most marginal of hundreds of prosecutions stemming from the unrest and violence that broke out as lawmakers were seeking to certify the results of the 2020 presidential election.
Unlike the vast majority of the nearly 800 people charged in connection with Jan. 6, Griffin didn’t go inside the building, nor is he accused of violence or property destruction. His trial is expected to last only about a day.
Griffin, 48, faces just two misdemeanor charges: entering a restricted area at the Capitol and disruptive or disorderly conduct while in such a place. Both carry a one-year maximum sentence.
Griffin’s defense, with a boost from the judge, has turned the trial into a key test for the Justice Department’s central thesis in hundreds of other Jan. 6 prosecutions: that the Capitol and its grounds were strictly off-limits in part because then-Vice President Mike Pence was at the site, automatically triggering a Secret Service perimeter and the coverage of a federal law aimed at safeguarding Secret Service protectees.
Griffin claims he arrived at the Capitol after Pence exited the restricted area, and prosecutors have repeatedly refused to clarify their understanding of Pence’s precise location, citing national security concerns. But they say Pence’s whereabouts are insignificant because the law Griffin is charged with violating requires only that Pence intended to return to the area — which he did shortly after the riot was contained.
Complicating matters, the U.S. Capitol Police have not authorized the Justice Department to share with defense attorneys all footage of Pence’s evacuation that day.
The police department’s general counsel, Thomas DiBiase, was in the courtroom at the start of the trial and indicated he would need to seek approval from the Capitol Police Board, which includes the House and Senate sergeants-at-arms, as well as the Architect of the Capitol. A department spokesperson declined to indicate whether that request had formally been made.
Prosecutors also contended that a Secret Service witness who accompanied Pence should not have to discuss his precise location.
If U.S. District Court Judge Trevor McFadden rules that she must, it could reverberate in hundreds of other Jan. 6 cases featuring the same charges.
Griffin has been pressing for a trial since early last year and elected to streamline the process by waiving his right to a jury.
That leaves Griffin’s fate entirely in the hands of McFadden, who has made clear his impatience with the pace of the government’s investigation and litigation in the more than 14 months since the Capitol riot. McFadden handed prosecutors a few procedural defeats in recent days, including as the trial began on Monday morning.
The proceedings were a stark contrast to the case of Guy Reffitt, the first Jan. 6 defendant to face trial. He was convicted on five felony counts earlier this month by a jury, following a more-than-weeklong trial in which prosecutors unleashed an overwhelming case against him — testimony from his teenage son, who secretly recorded conversations, a militia member who traveled with Reffitt to Washington, D.C., and testimony from multiple police officers of a harrowing confrontation with Reffitt at the outset of the Jan. 6 mob attack. In that case, there was no dispute that Pence was presiding in the Senate when Reffitt reached Capitol grounds.
Griffin’s case presents far less compelling questions and, thus far, proof. They include, primarily, whether his approach to the Capitol — in which he scaled a short stone wall amid the broader push of the mob — and his conduct outside the building meet or fall just short of the criminal elements required by the two charges he faces.
McFadden, who has in other cases expressed skepticism about the Justice Department’s treatment of Jan. 6 defendants compared with other protests that led to violence, excluded some videos that prosecutors wanted to introduce, with the judge saying the government took too long to seek them. They were in the possession of a witness, Matt Struck, a Colorado-based video editor who worked with Griffin’s Cowboys for Trump and accompanied Griffin at the Capitol last January.
The initial phase of the trial consisted of prosecutors walking McFadden through Griffin’s march toward the Capitol and onto the restricted Capitol grounds. To lay out this evidence, they called Struck, a friend of Griffin’s who chronicled their travels on Jan. 5 and 6. Prosecutors relied on dozens of his videos to help build the case against Griffin.
In the videos, members of the pro-Trump crowd can be heard chanting, “Decertify!,” “Stop the Steal!” and “Traitors!”
Some of the videos shown to the court depict Griffin wearing a dark cowboy hat as he scrambles over the stone abutments that separate various terraces on the Capitol grounds.
Griffin can be seen crawling over one such barrier, then ascending a bike rack placed sideways like a ladder against another barrier, then walking up a piece of plywood that had been put against yet another obstacle. He was far from alone in doing so, streaming along with what appeared to be thousands of others, many of whom were carrying pro-Trump flags or barriers.
In one video taken after the riot, Griffin appeared to acknowledge that he knew he was crossing a police line. “D.C. police says, ‘You can’t step over this,’” Griffin said, adding that it was “roped off” for the inauguration of Joe Biden.
McFadden seemed particularly interested in that video clip, asking for it to be played twice.
But Griffin suggested that there were so many Trump supporters and they were so fired up that trying to keep them out of the restricted area was pointless. “What do you think is going to happen?” he added.
Struck, who testified under a grant of immunity requested by prosecutors, said he didn’t recall any interaction with the D.C. police at the Capitol and wasn’t sure why Griffin referred to them trying to keep people out. “He might have been referring to the news we saw on TV,” the video editor said.
The videos also show an interview with Griffin from the afternoon of Jan. 6 in which he complains that Pence had certified the election — something that actually would not happen for hours. “Pence sold us all out,” Griffin declares. “You can imagine the emotion that went through people when we got that word.”
Griffin’s stated belief that Pence had already certified the election results could make it difficult for prosecutors to prove that Griffin believed Pence was coming back to the Capitol when Griffin and others crossed onto the Capitol grounds.
While the entering-a-restricted-area charge has been muddied by questions of Pence’s whereabouts, prosecutors’ evidence on the disorderly conduct charge also seemed weak in the trial’s early hours as video of Griffin from the event looks to be a far cry from the images of violence and mayhem at the Capitol that filled TV screens since Jan. 6.
Griffin’s attorney Nicholas Smith emphasized that when his client addressed a portion of the crowd that afternoon, he said a prayer. Those near him as he spoke through a bullhorn seem peaceful and it’s unclear how many actually heard him amid the din of the mob.
“Some of them started to kneel,” Struck said during cross-examination by the defense. “It looks like they were calm and they’re listening to Couy.”
In the videos shot that day, Griffin makes some stern-sounding statements, such as, “We’re not going to take no for an answer.” But he also said the protesters needed to act “peacefully.”
Smith said of his client, “His words did not come close to the line for incitement.”
The second prosecution witness was Capitol Police Inspector John Erickson, who described the various locations where crowds gathered on Jan. 6 and where police had erected barricades, with bike racks and what he called “snow fencing.”
However, McFadden seemed interested in the fact that while some of the fencing had signs indicating the area was closed, the permanent architectural features that Griffin scaled did not have such markings.
“No signs or anything on this wall, though?” the judge asked as he viewed one of the videos.
“That’s correct,” Erickson said.
Griffin seemed subdued during the proceedings, sometimes going to the side of the courtroom to consult privately with his attorney. A black cowboy hat similar to the one seen in the videos sat on the defense table next to Griffin, who told the court he works as a stone mason in addition to serving on the county commission.
Although the trial involves only two misdemeanors, it drew an unusual level of interest from the government. Among those in the courtroom on Monday were a top lawyer for the Secret Service, Patrick Glaze, and the chief of the criminal division of the U.S. Attorney’s Office in Washington, John Crabb.
The trial also drew a smattering of Griffin supporters, including a man wearing a biker vest emblazoned with the words “Release the Kraken…Under God, fraud vitiates everything.”
