When Your January 6th Defense Is Essentially “I Got Nuthin’, Your Honor.”

Some days as a defense lawyer are tougher than others. You try to make the best case possible, but sometimes the facts make your arguments seem a bit tenuous. 

Capitol riot defendant, Nathanial Degrave, wearing protective gear and carrying knives, entered the Capitol and, among other things, shouted at the rioters to “take laptops, paperwork, take everything.” He faces numerous charges, including the felony of “obstructing an official proceeding.” 

From the context of the January 6 events, it is clear that those who planned and stormed the Capitol had one immediate goal—to prevent the certification of the election. One would presume that this certification would occur during an “official proceeding.” 

Not so fast, says the defense. Their argument is that when Congress gathered to certify the election, it was not an official proceeding because it was “purely ministerial and ceremonial.” Therefore, the proceeding did not meet the technical statutory requirements for an official proceeding. 

So which is it? Either certification was a proceeding that could have been thwarted, which at least some of the invaders believed, or it was ceremonial, which would make their entire day’s work useless. 

U.S. District Judge Dabney Friedrich of the District of Columbia is the first judge to rule on this defense theory and she denied the motion to dismiss the charge. She noted that defendants were trying to find ambiguity in the statute where none exists. (Ambiguity is central to defendant’s argument because this gives rise to something called “the rule of lenity”—ambiguities in a statute are to be resolved in favor of the defendant.) 

If you are thinking that the defendant will immediately appeal this decision, delaying the criminal proceedings, they cannot. The denial of a motion to dismiss is not a “final appealable order.” The case will now proceed to trial (or a plea agreement). 

While writing this, I could not help but think of an example where a ceremonial event could be disrupted. “If anyone knows why these two should not be wed, let him speak now or forever hold his peace.” My guess is that if someone shows up at a wedding in riot gear, things will not go well.

Yep, I’ve Got a Fool For a Client

Abraham Lincoln famously stated “He who represents himself has a fool for a client.” Of course, that was before Google. Now, some people think that they can do a bit of online research and gain enough information to beat the system without the necessity of being represented by a professional. They are still fools.

At this point in the prosecution of the January 6 rioters, there are at least six defendants who believe that can go it alone. Brandon Fellows is one of them. At his bond hearing last week, the judge patiently tried to explain that he would be better served by listening to the advice of his court-appointed counsel.  He decided against that—which was his first mistake. 

Brandon’s second mistake was not recognizing the difference between a bond hearing and an evidentiary hearing. 

Brandon’s third mistake was trying to use a “loophole” he found on line to disqualify the judge. This loophole turned out to be a felony.

Brandon’s fourth mistake was not recognizing that anything he says in court can be used against him in further proceedings. 

So now Brandon is not only still in custody but also faces additional felony counts for things he said under oath in court. 

A fool indeed. 

There is an implied fifth mistake as well. Brandon, as well as many other defendants, are claiming that they should not be held responsible because they were simply trying to promote Donald Trump’s position concerning the election. These valiant political soldiers were under the impression that Trump would protect them or at least pay a portion of their legal fees. After all, it was Trump himself who said "It was a loving crowd, too, by the way. There was a lot of love."

Brandon and his friends are learning that expressions of love don’t pay the bills.