Politico

2 federal judges are poised to quietly begin unlocking reams of Jan. 6 secrets for Congress


Most Americans haven’t heard of Beryl Howell and Tanya Chutkan. Yet these two federal judges are poised to help deliver troves of hidden information to congressional investigators over the next few weeks that could dramatically reshape the public’s understanding of the Jan. 6 insurrection.

On Thursday, Chutkan, a 2014 appointee of President Barack Obama, will weigh former President Donald Trump’s effort to shield his White House records from the Jan. 6 select committee. Her ruling there could help lawmakers obtain call records, visitor logs and highly sensitive files from Trump’s senior aides.

In recent days, Howell, the chief of U.S. District Court in Washington, D.C., and a 2010 Obama appointee, has implicitly encouraged Jan. 6 defendants to cooperate with congressional investigators. Last week, she praised a convicted rioter, Leonard Gruppo, for his decision to be interviewed by the select committee last month.

Howell sentenced the military veteran to home confinement and probation, saying he demonstrated genuine remorse, “particularly by talking to members of Congress on the select committee to help deter other people with the specialized training you [received] in the military, not to turn it against fellow Americans.” Several other rioters who have pleaded guilty are preparing to testify, and more may take cues from Howell’s decision.

Despite their relatively low profiles, Howell and Chutkan have used their courtrooms to help force a national reckoning about Jan. 6 and to sound blaring alarms about the fundamental assault unleashed by these Trump-aligned rioters on American democracy. While House investigators fight to wring information out of Trump’s confidants, the judges are complementing and bolstering their efforts. And they’re helping frame the stakes of the national debate as they do it.

“The rioters attacking the Capitol on January 6 were not mere trespassers engaging in protected First Amendment conduct or protests. … Countless videos show the mob that attacked the Capitol was violent. Everyone participating in the mob contributed to that violence,” Howell said at a sentencing hearing last week. “The damage to the reputation of our democracy, which is usually held up around the world — but that reputation suffered because of January 6.”

For Howell, the attack on the Capitol hit particularly close to home. She served as a top aide to the Senate Judiciary Committee under the chairmanship of Sen. Patrick Leahy (D-Vt.) from 1993 to 2002. Leahy, during her confirmation hearing in 2010, described her as ”one of the most effective members of our Judiciary Committee staff.” Some of the cases she led in her subsequent career as a prosecutor, Leahy said, “read like crime novels.”

Howell has noted in some of the Jan. 6 cases before her court that the attack on her old office was partly visible from her courthouse’s east-facing windows. She has channeled a sense of outrage as she has described the alleged conduct of some of the rioters in her courtroom, like Thomas Sibick, who ripped away the badge and radio of D.C. Police Officer Michael Fanone as he struggled to defend himself amid the riot. And she has pressed prosecutors, in particular, to more clearly articulate the threat that the Jan. 6 attack posed to democracy, calling the Justice Department’s approach “almost schizophrenic” at times.

Howell has also chastised prosecutors for declining to challenge a decision of the federal Appeals Court that facilitated the pretrial release of rioter Eric Munchel, who appeared in a now-famous photo careening through the Senate gallery while wielding zip ties.

Howell has made clear she views her role partly as helping force more facts about the insurrection into the public domain. She has pressed for the public release of surveillance footage closely held by the U.S. Capitol Police, as well as other videos relied upon by prosecutors. She has pressed defendants themselves to articulate the reasons they entered the Capitol, going beyond what most other judges have asked of defendants in their courtrooms.

“She, I’m sure, of course, feels deeply the offenses that took place on Jan. 6, the breach of our constitutional system and traditions,” said Ronald Weich, a longtime aide to then-Senate Democratic leader Harry Reid. “It was traumatic to watch that, having been many times in those hallways. I’m sure Judge Howell had the same kind of reaction, but she knows a judge has to put her emotions aside and nonetheless would feel acutely the outrageous breach that occurred.”

Howell has also earned respect from defense attorneys for some of the rioters, even as she has excoriated their clients for their actions on Jan. 6. Gruppo’s attorney Daniel Lindsey said he appreciated that Howell understood his client’s assertion that his presence at the Capitol was driven by Trump himself. He called Howell “a brilliant jurist with a photographic memory.”

She has also rankled others, however, with her pointed lines of questioning. An attorney for Glenn Croy, one of more than 100 rioters who have pleaded guilty to misdemeanor crimes for their actions on Jan. 6, said Howell’s “intimidating” tone during Croy’s plea hearing caused him to incorrectly say that he intended to disrupt Congress’ session that day.

“Undersigned counsel means no disrespect to the Court,” wrote the attorney, Kira West, “but the plea colloquy in this case was the toughest in the nearly 30 year criminal prosecution and defense career of undersigned counsel.”

Chutkan, like Howell, has used her courtroom to reject efforts by defendants to minimize what occurred on Jan. 6. She excoriated Troy Smocks, who is Black, for claiming that racism played a role in proescutors’ decision to detain him for issuing social media threats of violence against lawmakers related to Jan. 6. And she has twice in recent weeks delivered a sentence that exceeded what prosecutors had asked for in Jan. 6 cases.

“He went to the Capitol in support of one man, not in support of our country,” Chutkan said of defendant Carl Mazzocco, one of the few clear Trump references that judges have made as they consider these cases.

Chutkan’s comments in that case came days after Judge Trevor McFadden, a Trump appointee, questioned the government’s approach to Jan. 6 cases and wondered whether they had taken a different one toward the riots that accompanied racial justice protests in D.C. over the summer of 2020. Chutkan, who said she had been listening to the comments other judges had made in these cases, rejected the comparison. Rather, she said, Jan. 6 defendants have been treated arguably more gently than those charged over the summer — since the pro-Trump rioters were not arrested on the spot and were permitted to participate in their proceedings remotely. Many, she noted, have received single-count plea deals despite facing multiple charges.

“There have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home,” Chutkan as she delivered Mazzocco’s sentence. “The country is watching. … If Mr. Mazzocco walks away with probation and a slap on the wrist, that’s not going to deter anyone from trying what he did again.”

But Chutkan’s most consequential moment may come Thursday, when she presides over a hearing in Trump’s lawsuit aimed at blocking the National Archives from sharing his White House’s records with congressional Jan. 6 investigators. Those records include hundreds of pages culled from the files of former chief of staff Mark Meadows, adviser Stephen Miller and counsel Patrick Philbin. They include call and visitor logs, speech drafts and memos that the Archives said were directly relevant to House investigators. Archivist David Ferriero plans to ship a first batch to lawmakers on Nov. 12 unless a court intervenes.

Chutkan hasn’t indicated where she’ll land on Trump’s effort, but legal experts say they’re confident she’ll see no merit in Trump’s unprecedented and expansive view of executive privilege for a former president. They say her decision to put his case on a rapid timetable is a clue to her thinking.

“I think we’re seeing a similar sense of urgency from Chutkan expressed initially in the schedule, which is very aggressive,” said Norm Eisen, a former adviser to the House Judiciary Committee who has co-signed a brief urging Chutkan to reject Trump’s case. “She’s been outspoken previously about January 6, about the conduct, including at plea hearings and sentencings where January 6 defendants have admitted their misconduct. I anticipate that we will hear a similar sense of the importance of moving briskly when she takes the bench on Thursday.”

The only remaining question, Eisen said, is whether the D.C. Circuit of the federal Appeals Court, and even potentially the Supreme Court, will permit a ruling against Trump to stand without a lengthy review. How those courts respond may be one of the most crucial moments in the success of the Jan. 6 committee.

“I would say that the decision of Judge Chutkan and of the appellate courts — that I predict will give the back of the hand to Trump’s argument — and the timing of those decisions, are the most consequential outside factors for the committee’s functioning,” he said.

Continue

About the author

Lisa

Leave a Comment