First Capitol Rioter to Go to Trial Gets 7 Years

A loudmouth III%er cried like a baby during his sentencing.

NBC News (“Capitol rioter Guy Reffitt gets longest Jan. 6 sentence, but no terrorism enhancement“):

A Donald Trump fan from Texas who tried to storm the U.S. Capitol while armed with a gun was sentenced to more than 7 years in prison on Monday after a judge denied the Justice Department’s request for a “terrorism enhancement” that would have resulted in a lengthier prison sentence.

Guy Reffitt was the first Jan. 6 defendant to go to trial. Reffitt’s own son actually tipped off the FBI a couple of weeks before Jan. 6 but didn’t hear back until after the attack. The government had an enormous amount of evidence against Reffitt, including his friend’s testimony that Reffitt was carrying zip ties and that the duo had made a decision to carry guns because they’d rather be “tried by a jury of 12 than carried by six.”

This is more evidence that he’s an idiot who thinks life is a television show than that he’s a criminal mastermind. It’s literally a slogan from a t-shirt.

Reffitt was convicted on five counts in March, including transport of a firearm in support of civil disorder and obstruction of an official proceeding, although he did not make it inside the Capitol or use physical violence because he was eventually incapacitated after charging the police line.

Judge Dabney L. Friedrich, sentenced Reffitt to 87 months in prison, three years of probation, $2,000 in restitution, and mandatory mental health treatment.

That seems about right to me.

“Under no legitimate definition of the term patriot does Mr. Reffitt’s behavior on and around January 6 fit the term,” Friedrich said.

What Reffitt and others did that day was the “antithesis” of patriotism, Friedrich said.

I maintain my longtime belief that judges ought refrain from pontificating from the bench. Reffitt’s patriotism is not on trial and, indeed, there is no “patriotism” defense for his crimes. But Friedrich ain’t wrong, either.

In court Monday, Reffitt described himself as “a f—ing idiot” and was “not thinking clearly” when he tried to storm the U.S. Capitol.

“I clearly f—ed up,” Reffitt said.

“I did want to definitely make an apology, multiple apologies really, and accept my responsibility because I do hate what I did,” he said.

Reffitt, who was a member of the Texas III%ers, told the judge that he no longer want to associate with militia groups or “or any stupid s— like that.”

Let’s stipulate that Reffitt is not the sharpest tool in the shed. I have no idea whether his post-arrest ordeal has reshaped his worldview, although I would bet that he’s still a racist POS. But I do suspect that he has been made painfully aware that he’s no hero.

Friedrich, a Trump appointee and a former member of the U.S. Sentencing Commission, said that giving Reffitt a sentencing enhancement for carrying a gun during the commission of a crime and for committing a crime of domestic terrorism would create a sentencing disparity with other Jan. 6 defendants.

“There are a lot of cases where defendants committed very violent assaults and even possessed weapons … that did not receive this departure,” Freidrich said.

It’s interesting that the judge, a Trump appointee, so vociferously called out Reffitt’s scumbaggery. But she’s also right that “terrorism” is a ridiculous upcharge.

Prosecutors had argued that the upward departure for terrorism was warranted because Reffitt was “planning to overtake our government.”

“He wasn’t done,” said Assistant U.S. Attorney Jeffrey Nestler said. “Jan. 6 was the preface.”

“We do believe that what he was doing that day was terrorism, we do believe he is a domestic terrorist,” Nestler continued.

That argument is both absurd under any understanding of terrorism in the national security space and yet plausible under the letter of the U.S. Code, which includes an intent “to influence the policy of a government by intimidation or coercion” as one qualifying factor.” The law is ridiculously overbroad.

I’m amenable to persuasion that the senior plotters of the riot—the inner circles of the Proud Boys, IIIers, etc.—qualify as domestic terrorists and should be charged as such. But it doesn’t make much sense in the case of more lowlifes like this dude.

Reffitt wore a camera on his body that recorded his violent rhetoric during the Trump rally that preceded the riot.

“I’m taking the Capitol with everybody f—ing else,” Guy Reffitt said in his own recording, as “Tiny Dancer” played at Trump’s Jan. 6 rally. “We’re all going to drag them motherf—ers out kicking and screaming, I don’t give a s—. I just want to see Pelosi’s head hit every f—ing stair on the way out, and Mitch McConnell too, f— ’em all… It’s time to take our country back… I think we have the numbers to make it happen.”

He also recorded a Zoom meeting on his computer where he talked extensively about his actions on Jan. 6.

Again, I see this simply as evidence that Reffitt is a pathetic loser who thought he was going to be some kind of hero while in the safety of a mob.

Nestler had argued Monday that Reffitt “is in a class all by himself,” but Freidrich said she was “not so sure I agree with the government on that” given how many other Jan. 6 defendants said similar things.

“This defendant has some frightening claims that border on delusional, and they are extraordinarily concerning for the court,” Freidrich said. “But other defendants did too. That’s the point I’m trying to make.”

Friedrich is right here. Reffitt is deserving of a much harsher sentence than the yahoos and lookie-loos who showed up well after the doors were breached to take selfies for their Instagram, or even actual rioters who showed up unarmed and committed no acts of violence. But he’s not a terrorist nor a mastermind. He’s just a stupid sonofabitch trying to convince himself that he’s not the total loser that even his kid seems to think he is.

Matthew Graves, the U.S. attorney for the District of Columbia, said Monday’s sentence held Reffitt accountable for “his violent, unconscionable conduct” and said Reffitt’s behavior “contributed to the many assaults on law enforcement officers that day, putting countless more people — including legislators — at risk.”

But, crucially, despite his tough-guy rhetoric, he himself committed no acts of violence. Seven-plus years in prison seems more than sufficient to demonstrate to him the error of his ways.

Steven M. D’Antuono, assistant director in charge of the FBI’s Washington Field Office, said Reffitt showed “wanton disregard” for the peaceful transition of power.

“The FBI and our law enforcement partners continue to be steadfast in our commitment to ensure that all individuals who committed crimes on Jan. 6 are held to account for their actions,” D’Antuono said.

Again, that was true of everyone there that day, even those who were simply exercising their 1st Amendment rights. We punish people for the actual violations of the law they commit, near their belief systems.

In court on Monday, Assistant U.S. Attorney Risa Berkower read a brief letter from Reffitt’s son Jackson Reffitt, who testified against his father. He wanted mental health treatment to be part of his father’s sentence.

“My father has lost himself to countless things,” Jackson Reffitt wrote. “The prison system should be used not to destroy a person, but to rehabilitate one.”

We are decidedly not good at that but, yes, we ought take a stab at working on Reffitt’s multiple issues while he’s in our custody.

Peyton Reffitt, one of Guy Reffitt’s daughters, said her father was not a threat and that his mental health was “a real issue.” She had a hard time making it through some of her statement because she was overcome with emotion, and her father was visibly crying.

Reffitt’s daughter had previously written a letter to the judge that it was “enormously embarrassing” that her father — like a lot of “middle-aged white men” — was sucked in by Trump and that her dad “fell to his knees when President Trump spoke.”

“President Trump deceived my father and many other normal citizens with families to believe that this past election was fraudulent,” the 18-year-old wrote in her letter.

She argued Monday that her father did not play a leadership role on Jan. 6.

“My father’s name wasn’t on all the flags that were there that day, that everyone was carrying,” she said in court. “It was another man’s name.”

If nothing else, Reffitt’s kids seem to be much more useful citizens than he is.

Moving beyond this loser, though, my sense that we would dispose of the lowest-level offenders, giving them relatively modest sentences, and then move up the food chain seems to be working out thus far. My strong hunch is that Reffitt’s 87 months will be a floor for the more violent participants and I expect very harsh sentences, indeed, for the key leaders.

Alas, I’m still not sure that holds true for Trump and others in suits who inspired the whole thing. It’s always harder to nail down those who gave the orders—especially in a non-direct way—than it is the guys who actually carry out the dirty work.

FILED UNDER: *FEATURED, Crime, Law and the Courts, Terrorism, , , , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. MarkedMan says:

    But she’s also right that “terrorism” is a ridiculous upcharge.

    Couldn’t disagree more. The fact that he was a stupid terrorist shouldn’t be a mitigating circumstance. He came with a gun and zip ties. Unfortunately it doesn’t surprise me that a Trump appointed judge thinks that bringing a gun into the middle of a huge crowd is not worthy of additional jail time. What possible good could have come from this man-boy pulling out that gun while surrounded by thousands of people? Especially given that there were other such idiots in the crowd? Only in America would we dismiss the potential for a mass shooting as not worthy of consideration simply because the potential instigator was an idiot.

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  2. Kylopod says:

    It’s interesting that the judge, a Trump appointee, so vociferously called out Reffitt’s scumbaggery.

    Most of the Trump appointees are just Federalist Society-approved career conservatives he greenlit. There’s no reason to assume they’re Trump lackeys. They’re probably more accurately described as McConnell judges. That’s something I don’t think Trump understood. If he ever makes it to the White House again, my guess is he’ll more aggressively Trumpify the federal bench.

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  3. OzarkHillbilly says:

    “I’d rather be tried by a jury of 12 than carried by six.” has been around a long, long time. At least since the 70s or so.

    @MarkedMan: Agreed. At the very least he should have gotten “a sentencing enhancement for carrying a gun during the commission of a crime.” I don’t buy the “would create a sentencing disparity with other Jan. 6 defendants” because how many of them were carrying firearms? Which people are specifically barred* from possessing in DC to begin with?

    * I don’t know the particulars of this law but have read that the mere possession of ammo is illegal in DC with out special licensing.

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  4. James Joyner says:

    @MarkedMan: @OzarkHillbilly: As noted in the WaPo report, “Reffitt was convicted on five counts in March, including transport of a firearm in support of civil disorder and obstruction of an official proceeding, although he did not make it inside the Capitol or use physical violence because he was eventually incapacitated after charging the police line.” That strikes me as quite appropriate. It was stacking a “terrorism” charge on top of that that I oppose.

    @Kylopod: Yes, that’s a very good point. As we’ve noted many times here, the one way in which Trump absolutely *was* a normal Republican President was in his judicial appointments. I could very much have seen a President Romney or President Kasich appointing Gorsuch, Kavanaugh, or Comey.firm him despite the scandalous charges level

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  5. Scott says:

    Maybe it is the loose use of language that is the problem but I see young men arrested and charged all the time with making “terroristic” threats on Facebook. So why is actually taking action not terrorism?

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  6. Stormy Dragon says:

    But she’s also right that “terrorism” is a ridiculous upcharge.

    The judge’s argument wasn’t that the terrorism upcharge didn’t apply to the facts of the case, but only that it was being used as a punishment for Reffitt exercising his right to trial and was inappropriate in that basis.

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  7. gVOR08 says:

    A small language kvetch. I wish people would stop saying “peaceful transfer of power”. That’s a pretty low bar, allowing a lot of non-violent bad behavior. What we want is a routine transfer of power. Hold the election, count the votes honestly, file the paperwork, done.

    This was a two prong attack. The other, admittedly also badly planned, prong flowed through Pence. Had there been a peaceful protest outside while Pence decided to count fake electoral certificates, backed by a lot of GOP Reps and Senators, the whole thing could have gone to SCOTUS, where a few Justices had signaled acceptance of the independent legislature theory. Would that have been acceptable as a “peaceful transfer”? GOPs at the state level are prepping for a similar scenario in ’24, with red state legislatures manipulating turnout and maybe overturning counts. Will that be acceptable as long as nobody gets violent?

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  8. OzarkHillbilly says:

    @gVOR08: Will that be acceptable as long as nobody gets violent?

    From which side?

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  9. MarkedMan says:

    @James Joyner: What Scott said in the comment immediately below yours. You are engaging in a theoretical discussion about what should be called terrorism in the eyes of the law, but that has been well adjudicated and applied to things significantly less than going armed in an attempt to overthrow the US government, carrying zip ties which shows some pretty specific intent, and charging a police line where hundreds of police were injured. You can be darn sure that if this guy wasn’t a “Christian” Trump supporter, that enhancement would have been levied.

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  10. MarkedMan says:

    @Stormy Dragon:

    but only that it was being used as a punishment for Reffitt exercising his right to trial and was inappropriate in that basis.

    But again, that is absolutely normal and routine. People that go to trial rather than plead get charged more seriously. Right or wrong, that’s been our system for at least a century. This Trump appointed judge seems to be going way out of his way to keep the “Terrorist” label off.

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  11. Michael Reynolds says:

    I’m with @MarkedMan, it was terrorism. And if we’re cutting slack to morons we’re going to have a lot more free prison space. During my brief time in jail I noted very few inmates reading Kant or working on the Riemann hypothesis.

    That said, seven years federal time is actually seven years. By virtue of this sentence and the unspeakable devastation of having his own kids turn on him, this man is destroyed. That’s enough.

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  12. Stormy Dragon says:

    @MarkedMan:

    I wasn’t endorsing the judge’s argument, merely pointing out it was something other than what it was being presented as.

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  13. Matt Bernius says:

    *donning fire proof suit*

    I think Stormydragon and James are 100% right on the terrorism charge ehnanced sentencing. And I think people defending the “trial tax” here are a great demonstration of how, regardless of liberal or conservative, we’re a nation addicted to punishing the people we think deserve it.

    Was this guy guilty? Yup.
    Based on the testimony and evidence does he seem like an awful guy? Yup.
    Do I think what he did was wrong and deserves some form of punishment including imprisonment? Definitely.

    And at the same time, I think we should be able to admit that the charging was a case of trying to make an example of someone in order to achieve broader criminal legal system goals (force pleas). And part of that is overcharging on the part of prosecutors.

    For the record, Reffitt was offered a plea which would have been for 50 months in jail (which, based on the facts, if his lawyer encouraged him not to take, that guy shouldn’t be practicing law). He ended up with 87 (more than 2 additional years). That’s enough of a tax.

    Yes, I realize that this is the way our legal system currently operates. It’s something I’ve written about here on multiple occasions. But that isn’t a good excuse to continue to justify the system’s continual operation in that fashion.

    Put a different way, it’s that type of attitude that guarantees we will have an ongoing mass incarceration problem for the rest of our lives.

    @MarkedMan:

    This Trump appointed judge seems to be going way out of his way to keep the “Terrorist” label off.

    First, it’s a “her.” And this approach to sentencing is pretty common among federal judges of both parties (Ken White/Popehat discusses this a lot in written and podcast form). So I think this is a bit of grasping at straws.

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  14. Again, I see this simply as evidence that Reffitt is a pathetic loser who thought he was going to be some kind of hero while in the safety of a mob.

    BTW, while I have no specific opinion on whether a terrorism charge fits, I will note that this sentence describes a lot of people who end up engaging in terroristic activity.

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  15. gVOR08 says:

    “My father has lost himself to countless things,” Jackson Reffitt wrote. “The prison system should be used not to destroy a person, but to rehabilitate one.”

    @Michael Reynolds:

    By virtue of this sentence and the unspeakable devastation of having his own kids turn on him, this man is destroyed.

    Unfortunately, Reynolds is right. Reffitt is likely to emerge in a few years older, but no wiser. Rehabilitation does not seem to be something we do very well, if at all.

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  16. IAC says:

    It’s still Evil that the Government had the son wear a Wire to record his father’s Conversations.
    And what these Men did was wrong, but it still doesn’t excuse the Fact that too many Voter Irregualarities

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  17. IAC says:

    Voter Irregularities shall we say “intentionally occured”, that prove that they were rigging the Election against Trump.
    Didn’t he also say ‘go peacefully protest’ ?

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  18. Michael Reynolds says:

    @IAC:

    it still doesn’t excuse the Fact that too many Voter Irregualarities

    For which you have zero evidence. The lies you believe are the lies that destroyed this man and his family. Stop believing lies.

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  19. Matt Bernius says:

    One more points on the Terrorism thing and why I think the judge was right that it was overcharging: The judge correctly pointed out that this has been the only case where Prosecutors have charged asked for the sentencing enhancement to be applied. The inconsistent application reaks of an additional trial tax (especially given in the other cases the individuals involved were often more violent behavior than Reffitt). Given that others took far more violent actions and escaped that particular conviction is really problematic.

    Edit: Further it’s worth noting that this is a *sentencing enhancement* and not a conviction. If the Feds believed this guy was engaged in a terrorist activity then should have charged it and had the jury decide rather than having the judge do a finding after the fact for the purposes of a harsher sentence. That’s an example of working the system (in the same way that defendants often choose bench versus jury trials when they think they will be treated more sympathetically).

    @gVOR08:

    Reffitt is likely to emerge in a few years older, but no wiser. Rehabilitation does not seem to be something we do very well, if at all.

    Seven years in federal prison is more than a “few years” older. And yes, rehabilitation isn’t not something we do well at all, because (as comments on this thread remind us) we’re, as a culture, far more focused on punishment.

    But hey, the good news is that he’s going to have unsealable federal felonies on his record to ensure that he keeps getting punished up until the day he dies.

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  20. drj says:

    A couple of thoughts:

    * A terrorism upcharge would have been appropriate.

    * Perhaps 7 years is enough regardless

    * The trial tax is horrible. Noone should be punished for exercising a constitutional right.

    * As his daughter noted, it wasn’t Reffitt’s name that was on the flags.

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  21. Matt Bernius says:

    @IAC:

    Voter Irregularities shall we say “intentionally occured”, that prove that they were rigging the Election against Trump.

    Bullshit… And its funny how no one every attempted to prove those occured in court… where there are actual consequences to bringing false claims. See this report from a collection of conservatives that examines all 64 court cases that occurred–if you are brave enough to actually be interested in conflicting facts:
    https://lostnotstolen.org//wp-content/uploads/2022/07/Lost-Not-Stolen-The-Conservative-Case-that-Trump-Lost-and-Biden-Won-the-2020-Presidential-Election-July-2022.pdf

    Or if you have proof that irregularities occurred, provide us with a link that doesn’t rely on a conservative media website or a propogandist like D’Souza.

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  22. Michael Reynolds says:

    @Matt Bernius:

    But hey, the good news is that he’s going to have unsealable federal felonies on his record to ensure that he keeps getting punished up until the day he dies.

    Matt, I will never be a fan of severe sentencing, but the man strapped on a gun, stuffed his pockets with zip ties and ranted about dragging Nancy Pelosi’s dead body out of the Capitol. He deserves this punishment.

    The reality is that we don’t know how to rehabilitate bad guys. The only reliable method is the age cure. 40 year-olds don’t crime as much as 20 year-olds, 50 year-olds still less, and sexagenarians less still, unless of course they get into finance or politics.

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  23. OzarkHillbilly says:

    Hooboy. Somebody farted.

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  24. Scott F. says:

    Reffitt’s daughter had previously written a letter to the judge that it was “enormously embarrassing” that her father — like a lot of “middle-aged white men” — was sucked in by Trump and that her dad “fell to his knees when President Trump spoke.”

    “President Trump deceived my father and many other normal citizens with families to believe that this past election was fraudulent,” the 18-year-old wrote in her letter.

    “My father’s name wasn’t on all the flags that were there that day, that everyone was carrying,” she said in court. “It was another man’s name.”

    Repeated for truth.

    A lot of “yahoos” are going to jail. The guy who’s name was on their flags is hosting a pro golf tournament as a quasi-campaign event.

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  25. Jen says:

    @IAC:

    Voter Irregularities shall we say “intentionally occured”, that prove that they were rigging the Election against Trump.

    Number one: there are always voter irregularities, in each and every election. That is because there is a small percentage of the population that is utterly incapable of correctly following instructions. I have a feeling this is not what you are talking about, but I want to acknowledge it up front, because it prevents anyone from EVER saying that there are no irregularities.

    Number two: The handful of voter irregularities that did happen are being identified. Like the man in Colorado who voted for his missing wife (charges against him were dropped due to insufficient evidence). That ding-dong voted for Trump on her behalf saying that he knew she would have voted for Trump anyway. Uh-huh. Sure.

    Number three: These situations are surfacing because despite the fever dreams of Trump supporters, it’s actually quite hard to get away with vote fraud. That’s because of the way we vote–down to the city/town/county level. Irregularities stick out like a sore thumb. Suggesting there are tens of thousands of untraceable votes make those suggesting this type of fraud look like idiots.

    Since I do not recognize your handle, I’m going to assume you are not familiar with the details of regulars here, so I’ll let you know now that I worked in politics and am not just spitballin’ here.

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  26. CSK says:

    @Jen:
    Brava!

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  27. MarkedMan says:

    @Matt Bernius:

    And I think people defending the “trial tax” here are a great demonstration of how, regardless of liberal or conservative, we’re a nation addicted to punishing the people we think deserve it.

    I think you are comingling two different issues. On the one hand, how much (if at all) should people have their charges lowered if they plead guilty without trial. (FWIW, I’m not defending it, as I agree with you that this has gotten out of hand.) The second issue is whether this Judge is treating this plaintiff differently than, say, a black Muslim American who had showed up at a government building armed with a gun and carrying zip ties. Yes, she claims she is concerned about overcharging. But has she ever expressed such concerns before? She’s a Federalist Society picked Judge, i.e. pro-business, anti-criminal defendant law-and-order type. And suddenly she’s concerned about the trial tax? Count me as extremely skeptical.

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  28. MarkedMan says:

    @Matt Bernius: I agree completely on the likely outcome of his stay in the Federal Pen. He’s a 3 percenter so his protection will be neo-nazis and other racists. The odds that he comes out worse rather than better is infinitesimally small.

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  29. MarkedMan says:

    @Jen: @Matt Bernius: Good on you guys for fighting the good fight. But… he’s a trumper. Keep your expectations for a light-bulb moment in check.

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  30. al Ameda says:

    @IAC:

    Voter Irregularities shall we say “intentionally occured”, that prove that they were rigging the Election against Trump.

    Do you prefer your Kool Aid orally or intravenously?
    With or without a straw?

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  31. Matt Bernius says:

    @MarkedMan:

    But… he’s a trumper. Keep your expectations for a light-bulb moment in check.

    I apparently also have to lower my expectations about “anti-Trumpers” and thier baises too considering you’ve already decided that not only does this defendant need to be punished as harshly as possible (because he has to be a terrorist because TRUMP!) but that a federal judge acting like a federal judge is clearly part of a conspiracy to protect Trump because he appointed her.

    And your only proof is… well… TRUMP!

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  32. Scott says:

    @Jen: I try to keep it simple for these folks. No language daylight. There was no election fraud and very little voter fraud. Differentiates between systematic and the individual.

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  33. CSK says:

    Jackson Reffitt says Trump belongs in prison along with his father.

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  34. Gustopher says:

    @James Joyner:

    It was stacking a “terrorism” charge on top of that that I oppose.

    Had he used the gun and zip ties, taking hostages and killing people, would you still say it wasn’t terrorism? I doubt it.

    I think the presence of the gun changes everything — he was clearly prepared to commit violent acts, he just didn’t get far enough to do so. It was terrorism.

    Gun rights come with gun responsibilities — keep your nose clean. Don’t bring guns illegally to a rally hoping it becomes violent and attempt to overthrow the government.

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  35. Jen says:

    @Scott: Good call. It’s challenging–at least for me, because I value precision–to say there were NO irregularities. That’d be like writing a 50,000 word book with no typos.

    The bottom line for me is that it would be impossible–completely impossible–to have the type of fraud this crew believes happened without it being blindingly obvious. There is no situation in which there is a) massive fraud; that b) is hard to detect.

    The “well, we can’t prove it but we know it happened” is evidence of profound stupidity.

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  36. Scott says:

    @Jen: I’m the same way. I always cringe when professionals like doctors, scientists, engineers are on TV talking because they always never use language that is definitive but instead talk about probabilities and conditions. Bad faith responders just drive trucks through that language.

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  37. MarkedMan says:

    @Matt Bernius: Did you actually read anything I wrote?

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  38. Matt Bernius says:

    @MarkedMan:

    Unfortunately it doesn’t surprise me that a Trump appointed judge thinks that bringing a gun into the middle of a huge crowd is not worthy of additional jail time.
    […]
    This Trump appointed judge seems to be going way out of his way to keep the “Terrorist” label off.

    Maybe I’m missing some subtly there, but it seems like you are suggesting that the judge is baised against your view because of who appointed her.

    But feel free to unpack. Or find something to demonstrate that this sentence is out of line with her sentencing history. Because otherwise, you are just making judgments based on limited facts and biases (something, btw, you somewhat fairly accused me of doing recently with my harsh critiques of the Uvalde police department).

    BTW, fun fact about Judge Friedrich–she served on the same sentencing committee as SC Judge Brown Jackson (including at the same time). During their tenure on that commission it lowered a significant number of sentencing guidelines (Brown Jackson was attacked about this at her hearings). So it’s entirely possible her views on Federal Sentencing statutes might be more nuanced than you give her credit for. https://www.ussc.gov/about/who-we-are/commisioners/former-commissioner-information

    Also, FWIW, at least one actual terrorism expert supports my view on things:

    Nicholas Grossman
    First Jan. 6 attacker found guilty at trial—others have pled guilty—gets 7+ years, but judge denies prosecutors’ request for a “terrorism enhancement.”

    Both good calls. Serious crimes warrant serious punishment, but what he did wasn’t terrorism.

    https://twitter.com/NGrossman81/status/1554495854911832065

    And “trial tax has gotten out of hand, but this enhanced sentencing request isn’t a good example of it because I think it was terrorism in this case” is not a consistent argument. Or rather, it’s exactly the same argument that is used by every prosecutor (or judge) to justify why, while reform is necessary, in this case the person always deserves to have the book thrown at them.

    The second issue is whether this Judge is treating this plaintiff differently than, say, a black Muslim American who had showed up at a government building armed with a gun and carrying zip ties.

    Funny we don’t have to speculate about that because some of those conditions were already met and came up in the Judge’s questioning of the Prosecutor handling this differently from a charging perspective than… checks notes… a black guy at the riot who literally beat 3 cops: https://twitter.com/JordanOnRecord/status/1554133644796649474?s=20&t=duXsn4ZI_Zu7qI_p9F5nEA

    She also noted that they didn’t go for enhanced sentencing on a Ex-Army Private who was armed (not with a gun) and carrying a target list:
    https://www.wusa9.com/article/news/national/capitol-riots/south-carolina-army-private-nicholas-languerand-consumed-by-qanon-sentenced-to-44-months-in-prison-michael-flynn-donald-trump/65-1ec0f1df-ac4c-4dcd-9a1a-8956fda64367

    I know it’s easy to blame the judge in this case, but this was prosecutorial overreach.

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  39. Matt Bernius says:

    @Scott:

    I see young men arrested and charged all the time with making “terroristic” threats on Facebook.

    But are they convicted on that? We need to carry the case through.

    [Edit: also what does “all the time” mean? That feels like a very confirmation bias-ie statement to me.)

    For example, we can look to (and I really need to blog about this) the utter collapse of the case around the Michigan Militia folks who “planned to kidnap” the Governor:
    https://www.npr.org/2022/04/08/1091769554/2-found-not-guilty-in-michigan-governor-kidnapping-plot

    But hey, they are Trumpers and probably deserve that… and the Fed’s are about to try and bite that apple a second time because it’s not like Double Jeopardy is in the constitution or anything:
    https://www.michiganradio.org/criminal-justice-legal-system/2022-07-26/outcome-of-first-kidnapping-trial-cant-be-used-as-evidence-in-second-trial-judge-rules

    Again, we shouldn’t only take issue with things like selective prosecution and overreach when they are done to people we are sympathetic to.

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  40. Just nutha ignint cracker says:

    . It’s always harder to nail down those who gave the orders—especially in a non-direct way—than it is the guys who actually carry out the dirty work.

    Always has been and will continue to be. Particularly as long as policy (spoken or understood) leans away from prosecuting people in high government positions–relying on impeachment instead.

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  41. Scott says:

    @Matt Bernius: Well. There was this case which was local.

    Feb 2013. Teen charged over Facebook comments

    A New Braunfels teen charged for making a terroristic threat against kindergarteners is attracting national attention.

    According to a criminal complaint filed by the New Braunfels Police Department, Justin Carter, 19, made the following comment on Facebook in February:

    “I think I’ma SHOOT UP A KINDERGARTEN”

    “AND WATCH THE BLOOD OF THE INNOCENT RAIN DOWN”

    “AND EAT THE BEATING HEART OF ONE OF THEM”

    28 Aug 2014 .

    Nearly five months after he was charged with making a terroristic threat on Facebook, a Texas teen remains in jail while his father worries constantly about his son’s safety.

    “He’s scared for his life, and I’m scared for his life,” Jack Carter told TODAY. “And every minute he’s in there is just another moment of torture for me and for him.”

    Justin Carter, 19, is being held in the Comal County Jail in New Braunfels near San Antonio on a $500,000 bond after being charged with making a terroristic threat on Facebook in February. The charge is a third-degree felony and could lead to a prison term of two to 10 years if Carter is convicted.

    Last Friday, Aug. 29, in New Braunfels, Comal County, State District Judge Jack Rob­ison rejected attorney Donald Flanary’s defense motions to dismiss the “terroristic threat” charges against Justin Carter, who was arrested and imprisoned for months in 2013 after posting a sarcastic Facebook post about shooting up a kindergarten.

    21 Feb 2018: Trial set in New Braunfels for defendant in Facebook threat

    Five years after being arrested over a threatening Facebook post that he claims was made in jest, Justin R. Carter is expected to finally stand trial this spring in the high-profile case that pits public safety concerns against the right to free speech.

    29 Mar 2018: Terroristic threat charge dropped against Justin Carter

    A four-year legal fight wrapped up Wednesday for a local man charged with making terroristic threats when he was 19 years old.

    In 2013, Comal County prosecutors charged Justin Carter of New Braunfels with making a terroristic threat on Facebook, related to an online video game.

    Carter admitted to investigators that he had made some snarky remarks in a discussion thread with some friends.

    Carter has been waiting to fight the charge in court, but it was dropped on Wednesday.

    His attorney said Carter instead plead guilty to a misdemeanor for creating a false alarm and was credited with time served.

    Was justice served here? Is there some equivalency to be discussed? I don’t know.

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  42. Just nutha ignint cracker says:

    @Matt Bernius:

    But hey, the good news is that he’s going to have unsealable federal felonies on his record to ensure that he keeps getting punished up until the day he dies.

    Good point. Then again, do you really want a guy like this living in your neighborhood, shopping in the same stores you shop at, going to the park your kids use, working at the space next to yours in the factory/office? This the type of thinking that drives the system as it is. (And sometimes I don’t think the liberal cult is any better than the Jesus cult.)

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  43. Gustopher says:

    @Matt Bernius:

    Again, we shouldn’t only take issue with things like selective prosecution and overreach when they are done to people we are sympathetic to.

    I would welcome the far right becoming interested in systemic solutions, but until then… fuck this guy.

    I also differ with the ACLU on this point. Do you know who should vigorously defend the rights of Nazis? No one, Nazis, Nincompoops, etc.

    Until there are enough resources to vigorously defend everyone’s rights, we are picking and choosing, and I pick everyone but Nazis. And III%s are Nazis.

    I think of it like donating to food banks. There’s so much need, that it makes sense to donate to one near me* rather than in a red county on the other side of the state.

    Feel free to think and do differently, of course, and I am impressed that you devote your career to this cause, but I also think you’re a bit wrong to extend your desire to help everyone to Nazis.

    You’re a nincompoop. You want to help people — even people that will turn around and bite you**. Mind you, the world would be better if that was a more common error that the usual flaws of tribalism, xenophobia, spite, etc.

    (Do you nurse ill rattlesnakes back to heath?)

    *: I donate one neighborhood over, because that one does really good outreach to the homeless community, which is underserved, and it helps attract the homeless over there rather than in my neighborhood.

    **: My cat did bite me this morning after she decided very suddenly that cuddle time was over. But cats are fluffier than nazis.

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  44. Just nutha ignint cracker says:

    @CSK: Sadly, the fact that Jackson Reffitt is correct has no bearing on what will happen or whether FG could even be successfully convicted IF (and a big if at that) we decided to attempt trying him.

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  45. Matt Bernius says:

    @Scott:
    Also it’s important to note that this was a case in *State Court* not *Federal Court*… Which are unfortunately two different things. That most likely would have been laughed out of Federal Court. Which is part of the issue.

    @Just nutha ignint cracker:

    Then again, do you really want a guy like this living in your neighborhood, shopping in the same stores you shop at, going to the park your kids use, working at the space next to yours in the factory/office? This the type of thinking that drives the system as it is.

    Sorry, this is the exact same argument that has led to things like historic redlining and making it really difficult for people returning from incarceration to find homes. It’s NIMBYism at its worst.

    [Edit: Justa apologies, I just reread your post and realized you were pointing this out, not representing that as your view… having a bit of a crappy day and making the mistake of not giving folks enough grace when reading their comments).

    @Gustopher:

    I would welcome the far right becoming interested in systemic solutions, but until then… fuck this guy.

    This single sentence (along with Just nutha ignint cracker) is exactly why we will lead the world for the foreseeable future in punishment and mass incarceration. Once again, forgiveness for those we approve of and justice… I mean extreme punishment for everyone else is 100% the American Way.

    You want to help people — even people that will turn around and bite you**.

    On this particular topic, I always refer people to A Man For All Seasons:

    William Roper: “So, now you give the Devil the benefit of law!”

    Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

    William Roper: “Yes, I’d cut down every law in England to do that!”

    Sir Thomas More: “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”

    It’s not the only reason I do the work I do, but I think we have seen time and time again that the expedient paths end up leading to dark places for all.

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  46. Michael Cain says:

    @Scott:

    There was no election fraud…

    To be meticulously fair, there was one case of significant procedural error where the judge ruled in favor of the Trumpists. The ballots had been properly preserved, though, and were re-processed using the correct standard. IIRC, it was in one of the states that had made relatively large changes at nearly the last minute because of the pandemic. I went into election day expecting more than one such error simply because so much got changed so rapidly, and at least one state to be a complete snafu. Kudos to a lot of election officials at all levels.

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  47. CSK says:

    @Just nutha ignint cracker:
    No, it won’t, but it’s good to hear someone who was directly affected by Trump’s actions say so publicly.

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  48. MarkedMan says:

    @Matt Bernius: What I’m saying is that the two issues, 1) whether we over charge and 2) whether this judge is treating this guy different then she would a Black Muslim caught in similar circumstances, are separable.

    Do we, in general, over charge? Yes, and it is wrong. Does 7 years seem insufficient to me? No. While I’m not familiar with sentencing guidelines, 7 years in jail is a long, long time given that he didn’t directly injure anyone. In fact, it seems high.

    What about her statement that this didn’t rise to terrorism? On that, I disagree. And given the number of people charged with making terroristic threats for much less, it seems that many other judges would, too. So, did I come to my conclusion on her motivations based on a pre-judgement that since she is a Trump/Federalist Society appointment she is also likely to be a right winger who doesn’t like people on “her” side painted with the terrorism label? Yes, yes I did. Anyone picked by a corrupt process should be assumed corrupt.

    I don’t have time to check your sources so I’ll just accept them and accept your judgement that I was wrong about this particular judge.

    Will I keep on assuming that anyone appointed by Trump is likely to be corrupt or an ideologue unless proven otherwise? Yes. Yes I will.

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  49. Matt Bernius says:

    @MarkedMan:
    Thanks for spelling all that out. I’m going to pick a nit that I think might really highlight our differences of opinion.

    What about her statement that this didn’t rise to terrorism? On that, I disagree. And given the number of people charged with making terroristic threats for much less, it seems that many other judges would, too.

    Important distinction–Reffitt was never charged with terrorism. This was a sentencing enhancement.

    And that was a prosecutorial decision to not charge terrorism (which would have led to a jury finding on it) and then have it tacked on at the end after the fact.

    And the fact that ~24 other 1/6ers had engaged in similar, if not worse, actions (i.e. physical violence, subversive speech, threatening lists) and prosecutors never asked for that charge matters from a judicial application of justice perspective.

    FWIW, I also find sentencing enhancements to be really problematic and overly punative (in particular in cases where they rely on a judge versus a jury to make findings of fact).

    Do we, in general, over charge? Yes, and it is wrong. Does 7 years seem insufficient to me? No.

    Great. I’m also curious how you will react when I tell you that 87 months is the lowest sentence that Reffitt could be given? He could have been incarcerated for up to 108 months (the max under statute).

    Now does it feel like he got a light sentence or let off easy? I’m genuinely curious.

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  50. Gustopher says:

    @Matt Bernius:

    This single sentence (along with Just nutha ignint cracker) is exactly why we will lead the world for the foreseeable future in punishment and mass incarceration. Once again, forgiveness for those we approve of and justice… I mean extreme punishment for everyone else is 100% the American Way.

    There’s a difference between people we don’t approve of and Nazis with guns.

    I disapprove of a whole lot of people — run of the mill Republicans, people who talk in movie theaters, people who drive BMWs… I want their rights protected, vigorously.

    Nazis who carry guns? Nah. Let the III%ers set up their own legal defense fund.

    There’s also a difference between driving a hole through the law and sitting this one out.

    Nazis may deserve to have their rights protected, but they don’t deserve to have their rights protected by an organization that I support. Which why I no longer am a member of the ACLU — too much defending Nazis.

    I don’t see the III%er in question getting worse treatment than anyone else in his situation — likely better, as there was no terrorism enhancement.

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  51. MarkedMan says:

    @Matt Bernius:

    Now does it feel like he got a light sentence or let off easy? I’m genuinely curious.

    Nope. As I said above, 7 years is an awful long time in jail, especially considering he didn’t physically attack anyone himself.

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  52. Matt Bernius says:

    @MarkedMan:
    Cool. That just helps with my calibration. Thanks for answering that and for hanging in with the conversation. I really appreciate it.

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  53. wr says:

    @Matt Bernius: “having a bit of a crappy day”

    Hope your Wednesday is better!

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  54. Just nutha ignint cracker says:

    @Matt Bernius:

    [Edit: Justa apologies, I just

    Not a problem. I would have just apologized for not being snarky well enough. Sometimes, letting people hear what they sound like in someone else’s voice works. On the other hand, I sound like the person I’m trying to reflect as much as they do a lot of the time.

    For the record, I pretty universally reject the idea of sentence enhancement. If the system needs to enhance sentences, it shows that punishments are inadequate to begin with (we’ll leave effectiveness out of the equation altogether for the moment–different debate entirely). If the enhancements are for the purpose of punishing some versions of some acts with greater severity, it simply shows that the law is as assholish as the people administering it.-

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  55. Raoul says:

    @Michael Reynolds: Exactamondo, him doing 7 years of hard time with no parole and very little time reduction for good time is indeed a harsh sentence, which he deserves of course, so let’s not get to boggle down on the “terrorism” issue. Of course, if had been black, I do wonder if the judge would have found the way he did- so many young black men are over sentenced in this country.

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