Most people in the United States have never heard of Beryl Howell or Tanya Chutkan. Nonetheless, these two federal judges are ready to assist congressional investigators in delivering troves of concealed evidence that might drastically redefine the public’s view of the Jan. 6 insurgency in the coming weeks.
Chutkan, a President Barack Obama appointment from 2014, will weigh in on former President Donald Trump’s attempt to protect his White House documents from the Jan. 6 select committee on Thursday. Her decision might assist legislators in obtaining phone records, visitation logs, and extremely sensitive materials from Trump’s top advisors.
In recent days, Howell, the top judge of the United States District Court for the District of Columbia and a 2010 Obama nominee, has indirectly pushed Jan. 6 defendants to help with congressional investigators. She complimented a convicted rioter, Leonard Gruppo, this week for agreeing to be interrogated by the select committee last month.
Howell sentenced the military veteran to home confinement and probation, saying he showed 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 pled guilty are set to testify, and more may follow Howell’s example.
BREAKING — US District Judge Tanya Chutkan has been REJECTING light sentences for Capitol rioters, saying a “slap on the wrist” won't cut it, making sure they see jail time.
RT TO THANK THE JUDGE! pic.twitter.com/kWaJ3QOSyL
— CALL TO ACTIVISM (@CalltoActivism) October 6, 2021
Despite their modest profile, Howell and Chutkan have used their courts to assist compel a national reckoning on Jan. 6 and to raise loud warnings about the basic attack on American democracy launched by these Trump-aligned rioters. While House investigators struggle to get information from Trump’s confidants, the courts are supplementing and boosting their efforts. They’re also contributing to the framing of the national discourse.
“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.”
The assault on the Capitol was quite personal for Howell. From 1993 through 2002, she was a senior assistant to the Senate Judiciary Committee, which was chaired by Sen. Patrick Leahy (D-VT). During her confirmation hearing in 2010, Leahy characterized her as “one of the most effective members of our Judiciary Committee staff.” Leahy described some of the cases she oversaw as a prosecutor as “read like crime novels.”
In several of the Jan. 6 cases before her court, Howell said that the assault on her previous office was partially visible from her courthouse’s east-facing windows. She has highlighted the alleged behavior of several of the rioters in her courtroom, such as Thomas Sibick, who pulled away the badge and radio of D.C. Police Officer Michael Fanone as he attempted to protect himself during the violence. And she has challenged prosecutors in particular to describe more clearly the danger that the Jan. 6 assault presented to democracy, describing the Justice Department’s approach as “almost schizophrenic” at times.
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Howell has also scolded prosecutors for failing to fight a federal Appeals Court ruling that allowed rioter Eric Munchel, who featured in a now-famous picture careening through the Senate gallery while brandishing zip ties, to be released on pretrial release.
Howell has said that she sees her work as part of bringing more information about the insurgency into the public realm. She has advocated for the public release of surveillance material stored by the United States Capitol Police, as well as other tapes used by prosecutors. She has questioned defendants to explain why they entered the Capitol, going above and beyond what most other judges have demanded 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, an aide to Democratic 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.”
Even as she has chastised their clients for their acts on Jan. 6, Howell has garnered the respect of several of the rioters’ defense lawyers. Daniel Lindsey, Gruppo’s attorney, said he appreciated Howell’s understanding of his client’s claim that his attendance in the Capitol was motivated by Trump himself. “a brilliant jurist with a photographic memory,” he said of Howell.
Her sharp lines of questions, on the other hand, have irritated some. An counsel for Glenn Croy, one of more than 100 rioters who have pleaded guilty to misdemeanor charges in connection with their activities on Jan. 6, claimed Howell’s “intimidating” tone at Croy’s plea hearing forced him to wrongly state that he planned to interrupt 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 defendants’ attempts to downplay what happened on Jan. 6. She chastised Troy Smocks, a Black man, for alleging that race was a factor in the decision to jail him for making violent threats against politicians on social media on Jan. 6. In addition, she has twice in recent weeks issued sentences that were higher than what prosecutors had requested in instances heard on January 6.
“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 direct Trump comments made by judges as they assess these cases.
Texas man fired from his job after being arrested for storming the Capitol
Matthew Carl Mazzocco, 37, was arrested Sunday
— LiA (@LibsInAmerica) January 20, 2021
Chutkan’s remarks in that case come just days after Trump appointment Judge Trevor McFadden questioned the government’s response to the Jan. 6 cases and asked if they had taken a different approach to the rioting that attended racial justice marches in D.C. throughout the summer of 2020. Chutkan, who stated she had been listening to other judges’ views in similar instances, dismissed the analogy.
Rather, she claims that the offenders accused on January 6 have been handled more humanely than those prosecuted in the summer, since the pro-Trump rioters were not detained on the scene and were allowed to participate in their hearings remotely. Many have accepted single-count plea agreements while facing numerous crimes, she said.
“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 important moment may come on Thursday, when she preside over a hearing in Trump’s case, which seeks to prevent the National Archives from disclosing his White House materials with congressional investigators on Jan. 6. Hundreds of papers were taken from the files of former chief of staff Mark Meadows, advisor Stephen Miller, and lawyer Patrick Philbin.
They include phone and visitation records, speech drafts, and memoranda that, according to the Archives, are directly pertinent to House investigators. Unless a court intervenes, archivist David Ferriero wants to send the first batch to legislators on November 12.
Chutkan has not stated her position on Trump’s initiative, but legal experts believe she will reject Trump’s extraordinary and wide understanding of executive privilege for a former president. They believe her choice to expedite his case reveals what she is 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 issue, according to Eisen, is whether the D.C. Circuit of the United States Court of Appeals, and maybe the Supreme Court, will allow a judgment against Trump to stand without further review. One of the most critical moments in the Jan. 6 committee’s success may be how those courts react.
“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.