Prosecutors pursuing the massive investigation into the Capitol riot suffered a setback Friday as a federal appeals court ruled that two defendants currently in pretrial detention may be entitled to release.
The ruling from the D.C. Circuit — its first in the sprawling set of cases stemming from the Jan. 6 storming of the Capitol — had been eagerly awaited by prosecutors and defense lawyers as a signal of how the appeals court plans to grapple with those events.
The appeals court held that a mother and son charged in the riot, Lisa Eisenhart and Eric Munchel, may not need to be jailed in advance of their trial because any danger they posed during the assault on the Capitol was unique to the Electoral College certification that took place that day and has diminished since.
“The District Court…failed to demonstrate that it considered the specific circumstances that made it possible, on January 6, for Munchel and Eisenhart to threaten the peaceful transfer of power,” Judge Robert Wilkins wrote in a 21-page opinion. “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.”
“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,” Wilkins added.
The appeals court’s majority did not explicitly order the release of Eisenhart and Munchel, who was featured in widely seen images of the Capitol takeover as he vaulted seats in the Senate gallery while wearing tactical gear and carrying zip-tie restraints.
Wilkins and Judith Rogers — the two Democratic appointees on the three-judge panel — stopped short of ordering the release of Munchel and Eisenhart, but the appeals judges made clear they believed that Chief U.S. District Court Judge Beryl Howell had exaggerated the pair’s ongoing danger.
The other D.C. Circuit judge on the cases, Trump appointee Gregory Katsas, said he would have overturned Howell’s decision and instructed her to release the pair with conditions.
“Whereas my colleagues remand for a do-over, I would reverse outright,” Katsas wrote in partial dissent.
Katsas noted that both defendants had made provocative statements about their willingness to sacrifice for their cause, but he dismissed it as just talk. “The defendants’ actual conduct belied their rhetorical bravado. During the chaos of the Capitol riot, Munchel and Eisenhart had ample opportunity to fight, yet neither of them did,” Katsas wrote.
Katsas also said he was dubious that they posed some serious ongoing danger. “The transition has come and gone, and that threat has long passed. In the district court, the government warned of an upcoming protest scheduled for March 4. But that protest never materialized, and the government produced no evidence that Munchel and Eisenhart had been involved in its planning before their arrest,” Katsas wrote.
All the appeals court judges said the assault on the Capitol on Jan. 6 was a grave one and that those who engaged in violence deserve to be treated as a danger. But they said Munchel and Eisenhart seemed to be in a different category, even though Munchel had a taser strapped to his hip when he entered the Senate chamber.
“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 wrote.
The appeals court’s opinion Friday also contains criticism of delay in Munchel and Eisenhart’s case, noting that after a magistrate judge in Tennessee ordered the pair released to home detention they spent three weeks in custody without a further hearing due to a stay order prosecutors requested and Howell entered.
POLITICO has reported on similar delays in other Jan. 6 cases, with several defendants taking a month or more to reach Washington after their initial appearances elsewhere in the country. Some of the delays were due to Covid-19 precautions, but in at least a couple of instances, the Marshals Service or other jailers lost track of orders to move defendants to D.C.
Wilkins called the delay with Munchel and Eisenhart “troubling” and suggested it defied a requirement in federal law that detention issues be resolved “promptly.”
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