Federal prosecutors said at a court hearing Tuesday that their supervisors recently approved plea offers in the case, which revolves around one of the most violent clashes from January 6. A viral video of the incident shows a police officer shouting in pain while getting crushed in a doorway.
Many of the Capitol riot cases are expected to end with plea deals rather than trials, and attorneys have recently said in court that talks are beginning. But even with the more than 400 defendants charged in federal court, few cases are currently in their endgames.
Only one defendant — an apparently significant cooperator against the extremist Oath Keepers group — has already pleaded guilty. Several other defendants in talks with prosecutors aren’t yet ready to make deals.
In the tunnel violence case that was in court on Tuesday, plea deals will be offered “in the very near future,” prosecutor Jocelyn Bond said.
Four men were charged in this case: Patrick McCaughey of Connecticut, David Judd of Texas, Christopher Quaglin from New Jersey and Tristan Stevens from Florida. They pleaded not guilty.
Federal Judge Trevor McFadden ordered McCaughey’s release from jail during Tuesday’s hearing, saying there isn’t enough proof that he attacked police, even though he clearly “committed various crimes” at the Capitol that day. Prosecutors specifically accused the other defendants of using chemical sprays, firecrackers and riot shields to assault officers, and two of them are still in jail.
In another case in court Tuesday, against a father and son who carried the Confederate flag inside the Capitol, another prosecutor acknowledged the Justice Department was able to make a deal in the case but still needed more time to hand over evidence to the defense team.
Some deals less likely
In several other cases, plea deals may not materialize for months, according to defense attorneys and disclosures in recent court proceedings.
A few defendants have seen delays in negotiations.
In some cases, the Justice Department says it’s not willing to make deals. In others, defense attorneys say they are in standoffs with prosecutors because of demands they are making.
Defense attorney Christopher Macchiaroli, who represents a Capitol riot defendant facing a misdemeanor complaint, said prosecutors last week weren’t ready to allow guilty pleas until defendants agree to give them access to their social media accounts and other materials, so they can show they have nothing to contribute to the bigger matter under investigation, such as the extremist group probes or the brutal assaults of police protecting the building.
“It’s clear to me what all this is about. They want to have this information at their disposal,” Macchiaroli said. “It’s going to bring this entire process to a grinding, slow approach.”
It’s unclear how many defendants may be placed in that same situation.
Federal Judge Royce Lamberth, in one of the recent Capitol riot hearings, cautioned a defendant and his attorney to be patient for a deal.
“Until the government really figures out where we are in cases like this, plea offers are not going to be favorable to the defendant, and the likelihood of a good plea offer right now is not as good as it’s going to be with a little more time,” Lamberth said on April 23. “They haven’t made any to anybody, except cooperators, yet. And the time for it is not yet.”
Just one plea so far
So far, only one defendant has cut a deal in exchange for a guilty plea, agreeing to cooperate: Jon Schaffer, a heavy metal guitarist who also was a founding member of the Oath Keepers. That deal was significant and potentially singular, other defense attorneys involved in the riot cases say, because Schaffer may have deep knowledge of the pro-Trump extremist group.
Prosecutors were willing to forgive some allegations against Schaffer in his deal, such as not charging him with weapon violation and allowing for a lesser likely sentence in exchange for his cooperation.
Other defense attorneys have spoken up to say the offers they’ve heard aren’t enough yet for their clients.
The Justice Department last week acknowledged it had given an initial offer to Jenny Cudd, a flower shop owner from Texas who faces five criminal charges including obstruction of an official proceeding, a serious count that if she is found guilty carries a maximum prison sentence of up to 20 years.
But the defense countered in court on Thursday it wanted reduced charges if Cudd were to plead guilty.
When it was told Cudd could plead to a felony, the defense team responded by asking if that was a joke, her attorney said in court. She pleaded not guilty in February.
Also last week, a prosecutor in the case against Richard Barnett, who put his feet on a desk in House Speaker Nancy Pelosi’s office, said she’d begun plea discussions with his lawyer. But it wasn’t time yet for a formal offer.
Barnett has pleaded not guilty.
Barnett’s attorney, Joseph McBride, told CNN’s Brianna Keilar in a TV interview last week that he had “zero interest” in the preliminary offer.
“As of now, we are awaiting further discovery from the government, and we are looking to proceed to trial. Should an acceptable offer materialize between now and then, then we will give it due and proper consideration,” McBride said on “New Day.”
Many defense lawyers have been hoping they could reduce their clients’ felony charges related to the riot to misdemeanors, which carry far less long-term, life-altering penalties. Several defendants, like Cudd, are accused of nonviolent crimes but also face the hefty felony charge of obstructing a congressional proceeding; others could face steep possible sentences if they admit to destroying federal property and prosecutors deem that to be terrorism.
And others still haven’t even been indicted by a grand jury or formally charged with misdemeanors, making pleas in those cases still an impossibility.
This story has been updated with additional details on plea negotiations.