Capitol Riot Overkill: Case That Should Never Have Been Brought Ends in Acquittal

Matthew Martin becomes the first January 6 defendant found not guilty at trial, after the prosecution’s blatant exaggerations backfired.

‘Y ou understand that police officers died?” That was a question that federal prosecutor Michael Romano put to defendant Matthew Martin, who was being tried for his nonviolent protest on January 6 at the Capitol — when and where, in fact, no police officers died.

Bad things happen to prosecutions when assistant United States attorneys make mendaciously prejudicial claims that they cannot back up with solid evidence. Good prosecutors win the judge’s confidence by playing it straight: Give your facts honestly, keep the rhetoric understated, let the proof sing for itself, and most of the close calls will go your way. If, to the contrary, the attorney for the United States engages in hyperbole, judges get concerned that the government’s claims may not be trustworthy and that its allegations may be overblown.

That’s what happened in the case against Martin — a case that should never have been brought. That doesn’t necessarily mean Martin was innocent. In many cases, a defendant may be technically guilty, but the Justice Department prudently exercises its discretion not to charge. The offense may be trivial in the greater scheme of things. Or, in a case where some people’s constitutionally protected dissent is bound up with other people’s violent lawlessness, the Justice Department will make violence its bright line, consistent with its duty to safeguard free expression.

Martin’s crime — if it was a crime, which was a close call — was trivial. If the context were a radical left-wing protest, everybody knows he not only would never have been charged; he’d have been beatified as a “peaceful protester,” and dissent would once again be patriotism. Martin’s prosecution was overkill, just as the FBI’s scorched-earth investigation was overkill. When the overkill is blatant, and the prosecutor is waving the bloody shirt instead of methodically proving a serious crime, the government does not get the close calls.

Thus did Martin become the first January 6 defendant to be acquitted at trial. A non-criminal who was not accused of any violent act, much less of causing a police officer to die, Martin was found not guilty by Judge Trevor N. McFadden on all four misdemeanor charges, after a two-day bench trial in Washington, D.C., federal court.

“Insurrection” agonistes will be quick to point out that Judge McFadden was appointed by President Trump, the rabble-rouser so central to the Capitol mayhem. Fair enough. After all, others among us have been quick to point out that the D.C. bench, with its preponderance of Democratic appointees, tends to lay it on thick when writing about the case or lecturing even the most minor January 6 defendants — as if they cannot fathom that most Americans, having watched footage of the Capitol riot and weighed it for what it was and what it wasn’t, have decided it was terrible but not the worst thing in the history of things, and find themselves more perturbed by their grocery bills and six-dollar-a-gallon gas.

McFadden was in the role not only of judge but of jury because the jury-trial right, which the Constitution reserves for serious offenses, does not necessarily apply to misdemeanors. Consequently, at least as germane as which president appointed him to the bench is the life experience he brought to the task of brokering the parties’ competing factual claims, just as a jury of one’s peers does in most criminal trials. Judge McFadden formerly served as both a police officer and a top Justice Department official. He knows what a thug who imperils a cop looks like; he knows what a meritorious prosecution looks like. He discerned neither of those in Martin’s trial.

Martin resides in Santa Fe, N.M. At the time of the Capitol riot, he was working for a private defense contractor at the National Laboratory in Los Alamos. Due to his law-abiding record, he had a government-issued security clearance to perform his work. A Trump supporter, he traveled to Washington to protest because he believed the then-president’s baseless claims that the election had been stolen.

In essence, his crime was simply to be present in the Capitol without authorization. That didn’t seem diabolical enough for Insurrection! purposes, so prosecutors inflated Martin’s conduct into four charges: entering and remaining in a restricted building; disorderly conduct impeding government business; disruptive conduct in the Capitol; and parading, demonstrating, or picketing in a Capitol building.

This is the menu of charges the Justice Department is bringing against hundreds of January 6 protesters who were merely present but didn’t do anything violent. As to this category of defendant, even the claim that they were “disruptive” is an exaggeration because the congressional proceedings had already been disrupted when these streams of voyeurs gawked through the facility. The DOJ is banking on hundreds of guilty pleas from the clueless — nimrods who, swept up in the moment, may not have appreciated that the People’s House is actually a restricted area to which the People’s access is limited by federal law.

Martin refused to go along with the program. He maintained his innocence from the start, including in waiving his privilege against self-incrimination in order to submit to an interview by FBI agents. He told them the same thing he told the court while testifying in his own defense at trial: He entered the facility, along with a group of peaceful pro-Trump demonstrators, because they were waved in by Capitol Police. “If the cops were not letting people in, I would not have gone in,” Martin averred.

Martin’s lawyer did not rest the case on his client’s word. The defense displayed video and photographic evidence of police officers allowing Trump supporters to come inside. You may have a hard time finding it in American media accounts, but Britain’s Daily Mail embeds relevant video clips and still shots in its report.

Prosecutors fulminated that Martin’s testimony was “nonsense.” You can tell they knew it wasn’t, though: Their principal contention was that, notwithstanding how he might reasonably have interpreted his interaction with the police, he should have known it was wrong to enter the facility.

This was a sound argument, technically speaking. The indicia of lawlessness were all around Martin, including tear gas and alarms. Moreover, most people in his position would probably have figured that the police, who were outmanned and overmatched in the early stages of the rioting, simply decided at a certain point, after the real aggressors had breached the barricades, that it would be safer for all concerned if they allowed apparently nonthreatening people to mill around the Rotunda. That was probably the best way to restore a semblance of order. A reasonable person would realize that, while he could enter, he still shouldn’t enter.

But this was a criminal trial. Prosecutors can’t win by establishing what most reasonable people would do under the circumstances. They have to prove beyond a reasonable doubt that the defendant had criminal intent, that he understood the wrongfulness of his actions. That’s hard to do when the police can fairly be described as allowing entry, and perhaps even inviting it. As Judge McFadden observed, this was a close call, on top of the facts that Martin’s testimony was “largely credible,” and his conduct on January 6 was “minimal and nonserious.” In other words, in this case, unlike the many truly serious Capitol riot cases, prosecutors did not deserve to get the close call.

Left unstated is the gross mismatch between the conduct and its treatment by a government that routinely turns a blind eye to lethal rioting by the radical Left. In a normal case, the Justice Department and FBI would never have pursued someone like Martin. There were plenty of violent felonies committed on January 6 — enough to keep the DOJ trying cases for years. Nothing is served by hounding the nonviolent misdemeanants . . . except the Biden administration’s lust to claim it is engaged in the biggest investigation with the most defendants in American history.

Here, the FBI got onto Martin because they found out — by working a source at the defense contractor — that he was a Trump supporter who took January 6 off (aha!). The Justice Department went to court to get a search warrant from a cellular-service provider to scrutinize cell-site evidence that confirmed Martin’s presence in the vicinity of the Capitol. Agents then tracked him down in Santa Fe. There, he retained counsel, volunteered to be interviewed, and credibly told them he was in the Capitol, engaged in no forcible conduct to get in, and entered only because the police indicated that doing so was permissible at that point. The Justice Department had no evidence to refute this, yet dragged him 2,000 miles back to Washington on petty charges the filing of which induced his employer — which of course wants to maintain its government contract — to fire him without waiting to see how the trial turned out.

That is patently unreasonable. The Justice Department, more than any other institution in the government thanks to many scandals resulting from the abuse of its national-security powers, knows the importance of focusing on forcible conduct while giving the benefit of the doubt to nonviolent protest — even if such protest is irrational or obnoxious. The DOJ has not done that with respect to the Capitol riot. Consequently, we have the spectacle of a prosecutor grilling a nonviolent protester about police deaths.

As previously recounted here, disingenuous investigators and commentators take pains to say that “police officers died” in the context of the riot because they well know that not a single police officer was killed during the riot, or even died during the riot. That is why not a single one of the Justice Department’s over 700 defendants has been charged with killing a police officer. But the DOJ, taking its cue from the attorney general, is playing from the Democratic sheet music: January 6 must be portrayed as an insurrection in which our very democracy and the Constitution itself were on the precipice of destruction. A “mere” riot that delayed an important vote for a few hours is somehow not heinous enough.

Reflecting the spirit of our parlous times, prosecutor Romano couldn’t help himself from intimating that “police died” because of the riot, even at a bench trial — i.e., a trial before, not a jury, but a federal judge who is well aware of the relevant facts (and, again, one who happens to have been a cop and a prosecutor who helped run the Justice Department’s Criminal Division). Romano knew he couldn’t prove what he suggested, but he indignantly suggested it anyway. He well knows that the police to whom he referred perished either from natural causes or due to suicide (some of the latter months after the riot). If the Justice Department could prove a causal connection between the events of January 6 and the deaths of cops, prosecutors would charge murder — and they would be absolutely right to do so. But they can’t do it. Every Justice Department prosecutor knows that, if you can’t prove it, you shouldn’t allege it or insinuate it.

The riot was reprehensible. Police certainly faced potentially lethal force. Over 140 officers suffered injuries, some of them quite serious (broken bones, a partially severed finger, a minor coronary episode, and various head injuries from being struck with dangerous objects). Every sensible person believes there should be aggressive prosecutions of the rioters who engaged in that violence. But the prosecutions of the Matthew Martins of January 6 are unworthy.