EDITORIAL:

Activist judge abandons neutrality in sentencing for insurrectionist

Image

Jose Luis Magana / AP

In this Jan. 6, 2021, photo, rioters climb the west wall of the the U.S. Capitol in Washington.

Tue, Oct 5, 2021 (2 a.m.)

A federal judge stepped grossly out of line last week in his justification for granting probation to a Jan. 6 rioter.

In a sentencing hearing for defendant Danielle Doyle, U.S. District Court Judge Trevor McFadden rejected a recommendation by federal prosecutors for two months of home confinement.

That would be fine if McFadden based his decision purely on the facts of the case. But he didn’t. Instead, he turned the case into a political attack on prosecutors, suggesting they’d been overly harsh in pursuing the Capitol insurrectionists compared with individuals arrested during Black Lives Matter protests last summer.

“I think the U.S. attorney would have more credibility if it was even-handed in its concern about riots and mobs in this city,” said McFadden, who was appointed to the federal bench by former President Donald Trump.

What does that have to do with whether Doyle should be confined? Nothing. She broke the law, which she admitted by pleading guilty in July to a misdemeanor count of illegally entering the Capitol. Prosecutors, as they’ve done in similar cases, requested two months of home confinement in her case — a lenient recommendation based on the fact that Doyle didn’t injure anyone or cause any damage. She entered the building through a broken window and spent 24 minutes inside.

McFadden’s attack on prosecutors vis-a-vis the BLM protests also was factually unsound. After the supposed inequity between insurrectionists and rioters became a talking point of the right, the Associated Press analyzed more than 300 criminal cases involving both groups and discovered that the insurrectionists were treated no more harshly than the BLM rioters.

Moreover, the events of Jan. 6 were a direct attack on our institutions, law enforcement and lawmakers. It was premeditated political violence on a large scale with no equivalent in modern history, and certainly no equivalence to BLM protests.

Other judges have recognized this in Jan. 6 cases. In fact, on the same day McFadden was indulging in whataboutism in Doyle’s case, another federal judge followed prosecutors’ recommendations for home confinement for another Capitol insurrectionist.

“I can’t emphasize enough, as I’ve said before, that the cornerstone of our democratic republic is the peaceful transfer of power after an election,” U.S. District Judge James Boasberg told Andrew Ryan Bennett in sentencing him to three months of home confinement. “And what you and others did on Jan. 6 was nothing less than an attempt to undermine that system of government.”

That should be the message to the Jan. 6 defendants. The prosecution’s record on BLM cases is as irrelevant to these cases as the price of eggs.

McFadden even acknowledged the seriousness of Doyle’s crime, chiding her for taking part in a riot he declared a “national embarrassment” and saying she acted no differently than the miscreants at BLM rallies who “decided the law did not apply to them.”

True on both counts. Yet instead of applying the law and using appropriate judgment on sentencing, McFadden opted to make a political point that minimized the seriousness of the insurrection.

Despite the misinformation coming from extremist politicians and right-wing media, the insurrection was anything but a “normal tourist visit.” No normal tourist enters the Capitol through a broken window while police outside are under attack and individuals inside go in search of political leaders to drag outside and lynch.

McFadden, who was nominated to the federal bench in Washington, D.C., in 2017, has shown his right-leaning political stripes several times as a judge.

In 2019, he rejected a House lawsuit accusing Trump of abusing his authority by diverting billions of dollars in funding — most of it intended for military purposes — to construction of a border wall. An appellate court overturned that ruling. McFadden also has made rulings favorable to Trump in a lawsuit seeking his tax returns, and refused to recuse himself in a suit related to the private investigation firm behind the so-called Trump dossier despite McFadden having donated to the Trump campaign and volunteered on its transition team.

This past February, McFadden raised eyebrows in another Jan. 6 case when, over prosecutors’ recommendation, he approved a request by defendant Jenny Cudd to travel to Mexico for a weekend company retreat.

Republicans have complained for years about “activist judges” on the left, and many of them see the likes of McFadden as the antidote. Yet he’s played a role on the federal bench in protecting Trump and his policies and enabling executive branch abuses.

And in Doyle’s sentencing, he clearly took up a cause among the extremist right to rewrite the history of Jan. 6.

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