By Katelyn Polantz and Hannah Rabinowitz, CNN
Updated: Mon, 28 Feb 2022 13:32:28 GMT
The sweeping January 6 investigation is headed into a new phase, with the first trial set to begin on Monday.
The stakes are undeniably high. The outcome is likely to influence scores of criminal defendants who face similar charges related to the attack on the US Capitol, and even could impact the major conspiracy cases the Justice Department is pursuing against right-wing extremists.
Jury selection for defendant Guy Reffitt's trial begins Monday morning and is expected to last at least a day.
The evidence from the Justice Department aims to prove that Reffitt of Texas obstructed Congress and brought a semi-automatic handgun with him to the insurrection. Prosecutors also allege that five days after the riot, Reffitt threatened his children to keep quiet about his trip to Washington, DC. Reffitt contests his five charges.
If prosecutors successfully make their case before the Washington, DC, jury, it will increase the pressure on defendants to plead guilty -- or even to cooperate -- with the January 6 investigation. If Reffitt, of Texas, is found not guilty, other defendants may be emboldened to continue to fight their charges.
A conviction would bolster ongoing cases that rely upon a theory the Justice Department is using here, that individual rioters contributing to the insurrection helped to obstruct Congress' certification of President Joe Biden's election. That is a key complaint prosecutors have against hundreds of defendants -- from rioters who allegedly opted to support the violence on their own, to the Oath Keepers charged with seditious conspiracy who are set to go to trial later this year.
"Same jury pool. Same statutory charge. Same proof will be put forward," Michael Zeldin, a former federal prosecutor and defense attorney in Washington, DC, said this week. What happens in the first trial "is a good tell for what people downstream could expect."
"You get only one chance to make a good first impression," Zeldin added.
In recent weeks, court proceedings in many of the January 6 cases have been in a lull, with a handful of defendants saying they are unwilling at this time to take plea deals and prosecutors not ready to resolve many of the cases.
Case against Reffitt
Reffitt's trial will be the first time the Justice Department lays out its case, presenting evidence specifically about him and about the obstructiveness of the riot more broadly.
The case from prosecutors is already set to be an extensive retelling of January 6 and the days before and after.
The Justice Department plans to call 13 witnesses during the historic trial, according to filings, including Reffitt's own children, members of then-Vice President Mike Pence's security detail, and Reffitt's traveling partner who was in a right-wing militia group with him. The co-member, so far identified in court papers as "R.H.," has been guaranteed immunity from prosecution to secure his testimony.
Prosecutors will also play extensive video of the siege.
Outlining their case in court papers already, prosecutors plan to use federal law enforcement, including testimony from the Secret Service, to describe how the riot affected the protection of Pence and his family at the Capitol.
A Secret Service supervisor "will also introduce, based on personal knowledge, surveillance video from the U.S. Capitol Police showing Vice President Pence and others descending the Senate members' staircase at approximately 2:25 p.m.," according to court papers. The agent, Paul Wade, "will generally explain the 'emergency actions' that the USSS took in response to the riot: relocating Vice President Pence and his family members, bringing additional USSS personnel to the Capitol, and relocating the Vice President's motorcade."
The Justice Department says it has surveillance video showing Reffitt on the west side of the Capitol, as well as Capitol Police witnesses and their radio calls about using crowd control chemicals against him. Investigators also collected Reffitt's Telegram messages from January 2021, and photos from his laptop, according to pretrial filings.
Reffitt's son, Jackson, recorded conversations with his father that prosecutors want to play for the jury, the court filings say.
Fewer details are available at this time about exactly how Reffitt's lawyer will counter the prosecutors' evidence, and the attorney, William Welch, did not respond to outreach from CNN last week.
So far, almost one-third of about 750 federal January 6 defendants have agreed to plead guilty to charges, with nearly all signing deals their attorneys cut with the Justice Department, according to data on the January 6 prosecutions collected by CNN.
That means more than 500 defendants are still headed to trial, lined up on the DC District Court's calendar behind Reffitt. As time goes on, they will have decisions to make.
Generally in court, a small percentage of all federal defendants choose trials, with most agreeing to plead guilty -- a balance that lets courts continue to move efficiently.
In the major Proud Boys and Oath Keepers conspiracy cases, prosecutors have already signed up cooperators who could testify against defendants at trial. Though Reffitt's case is not a conspiracy case, prosecutors plan to use a cooperating witness against him, a co-member of the Texas Three Percenters.
"He will testify about how he knows the defendant, discussions he had with the defendant, their travel arrangements, the defendant's firearms and tactical gear, and the defendant's movements and actions," court papers say.
Holding out from a plea
Reffitt is taking some risk by choosing to go to trial. If convicted, he could face years in prison.
Typically, defense attorneys make recommendations for when it's smartest for defendants to consider plea deals, but some January 6 defendants may still pin their hopes on right-wing politics and conspiracy theories. Some hold out because they believe they have more viable legal cases to test at trial.
Yet trials aren't easy options to pursue, especially if convictions have already come in.
"You've got a body of people, I think, who are waiting and seeing ... The risk of that is a prosecutor who's gone to a trial and convicted somebody of obstruction now knows he has a good case," Zeldin said. "I would think a conviction in that first case would inspire people to try to reach deals in their cases."
Proactively accepting responsibility for committing a serious crime rather than being convicted of it by a jury can mean a lighter sentence ultimately. Federal Judge Royce Lamberth predicted this when the first January 6 defendant charged with violence toward police pleaded guilty last year. Other defendants could "get a lot more" time in prison if they go to trial, Lamberth said at the sentencing, commending the defendant Scott Fairlamb's decision to plead guilty -- in his case, to assaulting a police officer and obstructing an official proceeding. The judge gave Fairlamb more than three years in prison.
The logistics of a trial require time, money and immense preparation.
Several January 6 defense attorneys have told CNN that lately they have struggled to keep up with the sheer amount of evidence the Justice Department has collected about their clients and the attack, especially in the form of hundreds of hours of video.
Also recently, the Justice Department has played hardball with defendants who have explored pleas, according to several defense lawyers and court filings.
Some January 6 defendants have rejected plea deals because prosecutors refused to drop the most serious charges or agree to a more lenient approach at sentencing.
In the past few weeks, at least five defendants have taken that route -- and opted to continue to contest the felony charges they face.
One defendant pleaded guilty but refused the deal the Justice Department offered him.
In court filings, defendant Greg Rubenacker's lawyer said that though Rubenacker wanted to accept responsibility for what he did on January 6, prosecutors were pushing for a harsher deal than other rioters who were charged with the same crimes.