The Justice Department is facing a tougher climb as it argues Capitol riot defendants should stay in jail -- with federal judges pressing prosecutors to explain possible inconsistencies in their arguments in some of the most high-profile cases related to the insurrection this week.
The apparent calculus prosecutors are using to determine whether they ask for jail time came to a head twice in court Tuesday, as they argued for the detention of a member of the pro-Trump extremist group the Proud Boys who carried an axe handle wrapped in a flag, and for an alleged conspirator among the paramilitary group the Oath Keepers who was suited up in armor at the riot and had said she was leading a group in response to the President's and others' signals.
Federal judges have landed all over the map in their decisions to keep alleged Capitol rioters detained, with many judges rejecting the Justice Department's initial requests to keep defendants in jail pending trial, and several appeals ongoing.
As the cases unfurl and count into the hundreds, the Justice Department is developing some patterns outside the obvious arguments for keeping a defendant in jail before trial. For defendants that could go either way based on their charges and criminal history alone, prosecutors have tried to push threats related to weapons they may have carried and actions they took after January 6 in making the cases for detention.
In the Proud Boy case on Tuesday, Judge Beryl Howell in Washington, DC, pressed prosecutors to explain why one of more than a dozen Capitol riot defendants affiliated with the group should stay in jail, when the Justice Department previously took no issue with the release of other Proud Boys leaders who were arrested.
Howell, considering whether to keep Kansas City-area Proud Boy William Chrestman detained, asked about the release of Proud Boys Hawaii leader Nicholas Ochs, who allegedly organized support before January 6 then etched the words "murder the media" on a door in the Capitol alongside his co-defendant Nicholas DeCarlo, who was also released after his arrest.
Howell also asked about comparing Chrestman to Proud Boys leader, Enrique Tarrio, who was charged in local court before January 6 for destroying a Black Lives Matter flag in Washington, DC, and illegal ammunition position. Ochs, DeCarlo and Tarrio have pleaded not guilty, and Chrestman's case -- a conspiracy case linked to several other associates of the Proud Boys -- is still in an early stage.
"Is it all because of the axe handle the defendant (Chrestman) was carrying into the Capitol?" the judge asked about Chrestman on Tuesday. Prosecutors explained Chrestman was more of a danger than the other Proud Boy rioters because they say he had carried the weapon into the Capitol.
Howell would agree. "He wasn't coming to stroll around the reflecting pool, looking at the monuments. He was coming with a gas mask ... an axe handle. There was some preplanning there," Howell said, ordering Chrestman to stay in jail pending trial.
She also noted Chrestman hadn't expressed any remorse, hadn't disavowed the Proud Boys and hadn't conceded the legitimacy of President Joe Biden's election. His attorneys had argued he wasn't dangerous after January 6.
Howell has reacted strongly in recent weeks to the actions of the rioters in several cases where the Justice Department has argued to keep them in jail, often siding with prosecutors.
But that's not how all judges have handled the arguments and legal questions over which defendants should stayed detained.
In a separate hearing on Tuesday afternoon in the same Washington courthouse, the Justice Department faced a tougher reception as it tried to keep alleged Oath Keeper Jessica Watkins in jail.
"These are issues that are going to affect not only Ms. Watkins but dozens and dozens of people who are coming through the pipeline," Judge Amit Mehta said.
Watkins has pleaded not guilty to conspiracy and other charges related to January 6, and her attorney has said she was not violent that day. But the Department of Justice has shared her text messages and statements she made to argue she relished the insurrection and remained indignant afterward.
They say she discussed wanting to go "underground" if Biden were elected, and texted that a news reporter's coverage of the Oath Keepers should prompt the group to "sue harder. Class action style."
"It's not clear to me ... what the government is relying on" to make the case for detention, Mehta said at Watkins' hearing on Tuesday. He did not make a decision on whether she must stay in jail, pushing additional arguments to Friday. Watkins remains detained until at least then.
The prosecutors had tried in Watkins' case -- unlike almost any other Capitol riot case -- to claim her charges related to pre-planning and intimidating the Congress amounted to a crime of terrorism that merits her staying in jail. They also argued she could abscond.
"She turned herself in. I just have a hard time finding that it rises to a level of a serious risk of flight," Mehta responded.
Judges are overturning rulings as well
In two other cases this week, the Justice Department lost one argument and won another on whether to keep Capitol rioters detained -- both of which involved overturning rulings from previous judges, again showing how much the Capitol prosecutions have varied.
Doug Jensen of Iowa, who was caught on video chasing a Capitol Police officer near the entry to the Senate, will stay in jail, Judge Timothy Kelly decided at a hearing on Tuesday.
Kelly said there was no indication Jenson's "interest in revolution" had gone away following the insurrection. Kelly also pointed to Jensen's previous criminal convictions, including a domestic assault charge.
Kelly's decision overturned a ruling by a lower court judge in Iowa to release him. Jensen's attorneys hadn't fought for his release once his case moved to DC and he was indicted. He has pleaded not guilty.
In the other case -- of Texas winery owner Christopher Grider, who allegedly told his wife to "get rid of his Trump things" after the riot -- Judge Kentaji Brown Jackson decided he should be released. Grider's defense attorneys had argued he had been a "passive bystander" in the insurrection. He has pleaded not guilty.
Still, Jackson condemned his actions.
"If there is a more serious offense against who we are as a society and the rules that are at the core of our democratic process, then I don't know what it is," Jackson said at a hearing Monday.
Jackson noted it was the "closest call" on detention she'd had among the cases, after the Justice Department did not offer any new argument and failed to meet the legal threshold to keep Grider in jail that other DC federal judges were requiring.
Her decision overturned a ruling by a lower court judge in Texas to keep him detained.