Their decision came after a federal appeals court on Friday sided with the two accused rioters’ request for release from jail, drawing a distinction between violent and non-violent insurrectionists. Prosecutors are struggling with the issue in dozens of cases stemming from the Capitol attack.
A U.S. District Court judge had previously agreed with prosecutors that Munchel and Eisenhart are radicals who are too dangerous to release. But defense attorneys have argued that while they may have expressed violent fantasies, neither acted in a violent way on Jan. 6.
The appeals court panel said U.S. District Judge Royce C. Lamberth erred in deeming the pair a threat.
“In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way,” wrote Judge Robert L. Wilkins of the U.S. Court of Appeals for the District of Columbia Circuit.
Wilkins was writing in response to Lamberth, who wrote in ordering the mother and son detained that “few offenses are more than threatening our way of life” than supporting “the violent overthrow of our government.”
Wilkins said that threat had to be considered in the current context as compared to Jan. 6, when a huge crowd and the congressional count presented “a unique opportunity to obstruct democracy.” Without those elements, he said, “Munchel and Eisenhart — two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities — seemingly would have posed little threat.”
He noted that no large pro-Trump mobs have gathered in Washington since then; a planned rally for March 4 fizzled.
The two other judges on the three-judge panel agreed with Wilkins, an Obama appointee. But only one, a recent Trump appointee to the bench, thought the mother and son should be released immediately. The other two agreed to send the case back to Lamberth for a second look. Prosecutors on Monday decided to agree to the home confinement.
Federal agents have been investigating whether Munchel and others who carried plastic cuffs inside the Capitol planned to take lawmakers hostage. But no evidence of such plans has emerged publicly. According to court records, Munchel says someone handed him the zipties inside the Capitol and he took them home.
While federal judges have been vocal in their dismay over the events of Jan. 6, prosecutors have failed in some cases to convince them that individuals accused in taking part deserve to be jailed pending trial. Chief U.S. District Judge Beryl A. Howell chided prosecutors earlier this month for making and then withdrawing sensational allegations about planning among the far-right Proud Boys for the Capitol breach. The Department of Justice has since released new details of communications inside the group and asked Howell to reconsider.
Wilkins called it “troubling” that it took three weeks for a judge in D.C. to review the case, suggesting that while covid-19 delayed the pair’s transport, they could have appeared in court remotely.