Commentary: As DOJ Threatens to Charge ‘Thousands’ over J6 Trespassing, Judges Signal Skepticism

Graves seems to be referring to the most common misdemeanor count in the J6 prosecution, 18 U.S. Code § 1752, knowingly entering or remaining on restricted building or grounds. Nearly every J6 defendant has been charged with one or two misdemeanors related to that count; convictions have resulted in weeks and months in prison.

The government argues that the grounds around the Capitol were off-limits because Vice President Michael Pence, a protectee of the Secret Service, was there. Restricted grounds, the statute reads, is “a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting.”

Setting aside questions as to Pence’s exact whereabouts after he was evacuated around 2:20 pm on January 6—defense attorneys have been prohibited from questioning his Secret Service detail to determine his precise location, which the government claims was a loading dock on Capitol property—and the fact the DOJ lied in charging documents for nearly a year that incoming Vice President Kamala Harris also was in the building (she was inexplicably at the DNC headquarters where an alleged pipe bomb was found), the notion that thousands of people should have known the lawn of a government building was “restricted” due to the presence of Pence is absurd.

But that has not stopped judges and juries in Washington from convicting J6ers on the trespassing offense including individuals who arrived after initial barriers and signage were torn down shortly after 1:00 p.m. One of the first Trump supporters arrested on the 1752 count was Couy Griffin, founder of Cowboys for Trump, a few weeks after the Capitol protest.

Prosecutors accused Griffin, who never went inside the building, of “unlawfully and knowingly enter[ing] and remain[ing] in a restricted building and grounds, that is, any posted, cordoned-off, and otherwise restricted area within the United States Capitol and its grounds, where the Vice President was and would be temporarily visiting, without lawful authority to do so.”

Griffin crossed the west side grounds around 2:30, more than an hour after snow fencing and bike racks were removed and recorded a video from the upper terrace.

During a bench trial in June 2022, Judge Trevor McFadden convicted Griffin on the trespassing charge. He was sentenced to 14 days in jail.

That conviction is now on appeal—and a pending decision by the D.C. Circuit court could frustrate Graves’ plans to bring the same charge against thousands more Americans.

Not a Slam Dunk for Graves

During oral arguments on Griffin’s appeal last month, a three-judge panel sounded skeptical that the government had met its burden of proof in Griffin’s case. Debate centered on whether Griffin knew the vice president was still on the premises when he entered and remained on the west side; Judge McFadden had concluded that Griffin’s knowledge whether Pence was at the Capitol at the time was immaterial to his guilt.

Judge Cornelia Pillard, an Obama appointee, pushed the assistant U.S. attorney to explain why it didn’t matter whether Griffin knew Pence remained on Capitol grounds. By the end of arguments, both the panel and the government appeared to agree that the case should be sent back to McFadden with a requirement that the judge ascertain Griffin’s knowledge that Pence was still on the premises.

Graves faces more headwind from the courts. The day after Graves’ J6 theatrics, Judge Christopher Cooper acquitted Jeremy Groseclose on two 1752 charges by arguing the government had not met the burden of proof. Cooper, also appointed by Obama, concluded the DOJ must prove a defendant knew the Capitol was “posted, cordoned off, or otherwise restricted” and that the defendant knew Pence, as a Secret Service protectee, “was temporarily visiting the Capitol that day” in order to establish guilt.

“The government presented almost no evidence that Groseclose knew that Vice President Pence was inside the Capitol that day,” Cooper wrote on January 5. “The evidence regarding Groseclose’s plans prior to January 6 does not establish that he knew Vice President Pence was to preside over the Joint Session to certify the Electoral College vote. And on January 6 itself, the government did not prove that Groseclose heard any of President Trump’s speech, let alone the sections referencing the Vice President. It is entirely plausible based on the evidence presented that he learned of the Vice President’s role in the certification in the aftermath of January 6 when the events of that day were widely discussed and publicized in the media.”

So, who exactly does Graves plan to charge? Since at least 1,000 defendants—most of whom entered the building at some point or arrived when some barriers remained in place—have already been charged, it appears Graves is poised to cast a wide net for protesters who arrived on Capitol grounds long after Pence left the building. Is his office prepared to prove that each individual knew Pence remained on Capitol property?

Of course, evidence and the law matter little to Graves, the DOJ at large, and most D.C. judges. Graves accomplished his mission of accelerating the government’s campaign of fear related to January 6 and its relentless criminalization of political activity.

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Julie Kelly is an independent journalist covering the weaponization of the U.S. Government against her citizens, Follow Kelly on Twitter / X.
Photo “US Attny Matthew Graves” by US Attny Matthew Graves.