US prosecutors have charged numerous people with assaulting or resisting federal officers since mid-August in cases leveling allegations mirroring those brought against Jan. 6 defendants that President Donald Trump essentially wiped out.
A Bloomberg Law analysis identified at least 20 federal court cases so far that contrast with the president’s move this year to grant clemency or dismiss counts in the assaults of over 140 police officers during the 2021 Capitol riot.
The contradiction differentiates the White House-imposed summer law enforcement surge in DC with Jan. 6 fallout and a Justice Department-wide shakeup fueling criticism that Trump’s politicizing the criminal justice system. It’s also produced challenges for prosecutors before grand juries, skepticism from at least one judge, and claims of selective treatment from defense counsel.
In one matter, a federal magistrate judge cited Jan. 6 in rejecting a motion for pre-trial detention for Paul Bryant, an Army veteran and former Covington & Burling associate accused of making contact with a National Guard member’s shoulder and then allegedly voicing violent threats.
“If part of what the government has said out of one side of its mouth is that when people assault police officers they’re not a danger, then when they come and bring a new charge, I have to think of that,” Magistrate Judge Zia Faruqui said during an Aug. 28 hearing.
At the same time, prosecutors have failed to persuade multiple grand juries to return felony indictments in cases linked to alleged assaults on officers. This includes a widely publicized incident involving Sean Dunn, a former DOJ employee who was charged with throwing a sandwich at a Customs and Border Protection officer.
The local reaction to the flood of National Guard and other federal resources in DC in response to what Trump has called out-of-control crime, combined with past DOJ charging decisions related to Jan. 6, appears to be contributing to those grand jury decisions, said Reed Smith partner Evan Barr.
It “obviously does show that the grand jury is well aware of the backdrop,” said Barr, who once worked as a former federal prosecutor in New York. “These are obviously very controversial and the grand jurors are having a real problem going along with this type of case.”
Pirro’s Push
Cases US Attorney Jeanine Pirro is pursuing under the DC law-and-order surge include those under a statute barring the assault, resisting, opposing, impeding, intimidating, or interfering with federal officers performing their duties.
Initial charging documents include some cases of people hitting and kicking officers, as well as at least three alleged instances of people spitting on officers and one stemming from resistance to arrest on an open container charge.
Prosecutors have also charged a Venezuelan national, who the administration says is illegally in the US, with resisting arrest when approached by immigration officers. Bystanders captured the moment on video, which a lawyer for the defendant argues shows officers committing assault.
The DOJ hasn’t disclosed in every case whether they’re pursuing it as a felony, which requires an indictment and can carry up to eight years in prison if the act involved physical contact or intent to commit another felony. Acts defined as simple assault can carry up to a year in prison.
Pirro has in public comments acknowledged “the burden is on us to prove these cases.” But she also blamed the failure to secure a grand jury indictment in Dunn’s case on crime being “normalized” in DC.
Her office didn’t respond to requests for comment.
Selective Prosecution Defense
Federal prosecutors in Washington in the years following Jan. 6 charged over 600 cases involving the assault or impeding of federal officers.
More than 160 of them were pending when Donald Trump returned to the White House and the DOJ ordered their dismissals—a fact US Rep. LaMonica McIver (D-N.J.) seized on to fight her own case stemming from a confrontation between lawmakers and immigration officers outside a detention facility in her home state.
McIver is accused of interfering with federal officers as they detained Newark Mayor Ras Baraka on a trespassing charge prosecutors later dropped.
Her lawyers want the case from the New Jersey US attorney’s office dismissed, arguing the decision to pursue McIver while dismissing cases involving Jan. 6 defendants is “all about politics and partisanship.”
What’s known as a selective prosecution defense holds a “certain appeal,” said Eugene Ohm, an assistant federal public defender in Washington. But Ohm said the government’s use of these charges is “unprecedented” and that individuals’ speedy trial rights may be more important.
“Many of these cases are based on such little evidence that we know we can rely upon jurors to do the right thing,” he said. “DC citizens are smart and discerning and eventually our clients will win these cases whether at trial or through the grand jury process.”
Three grand juries in one matter rejected prosecutors’ push for a felony indictment of a woman who recorded a July transfer of a DC jail inmate to Immigration and Customs Enforcement custody and was accused of striking an FBI agent’s hand during the incident.
Prosecutors are now pursuing that case as a misdemeanor, with a jury trial slated to start in October. It is one of at least two trials scheduled next month for alleged misdemeanor assaults of federal officers. The DOJ also downgraded Dunn’s case to a misdemeanor, though a trial date has yet to be scheduled.
The Justice Department may be able to rebut any claims of selective treatment by arguing that it’s “prosecuting these assaults in response to an ongoing public safety emergency, whereas January 6 was a one-time event in the past that doesn’t pose an ongoing danger,” said Alexis Loeb, a Farella Braun + Martel LLP partner and former DC federal prosecutor.
Even so, Loeb said, “the government is setting themselves up to answer some tough questions” in court.
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