23 US Capitol riots 0106
CNN  — 

Not all the Capitol rioters are riotous enough to stay in jail. But the question of which ones are has become one of the thorniest issues for courts to decide, more than two weeks after a pro-Donald Trump mob attacked the US Capitol.

Four times so far, judges across the country have disagreed with the Justice Department’s attempt to keep locked up alleged rioters who breached the Capitol on January 6. The latest ruling came Friday night in Tennessee, where a judge decided to release a man who’s become known for the zip-tie-like restraints he carried and the black helmet and body armor he wore into the Senate chamber that day.

At least three other alleged rioters whom judges said should be released still remain in custody, and will be brought to Washington, DC, according to court records.

The surprise recent decisions from the judges in Iowa, Arkansas, New Jersey and Tennessee rejecting the Justice Department’s requests highlight how prosecutors are running up against a set of laws meant to protect Americans’ rights amid a truly unique crime.

Prosecutors must show a defendant is a flight risk or a danger to the public if they want to keep the person in jail pending trial. Or they can argue that the defendant is charged with a crime of violence – a more complicated legal standard that in some situations requires heftier charges on the books.

Three defendants

In Fayetteville, Arkansas, Magistrate Judge Erin Wiedemann decided to release Richard Barnett, who was photographed with his feet on a desk in House Speaker Nancy Pelosi’s office and carried a stun gun in the crowd at the Capitol. “It certainly turned into a very volatile situation on Capitol grounds that wasn’t just created by Mr. Barnett, but many, many other individuals in a sort of a mob mentality,” Wiedemann said during Barnett’s detention hearing. She ruled for releasing Barnett, putting him on 24-hour-a-day lockdown at home and ordering him to avoid all contact with others in the riot.

In Trenton, New Jersey, Magistrate Judge Tonianne Bongiovanni said an Army reservist with a secret-level security clearance, whom prosecutors say holds White supremacist beliefs, could be released. “In order to protect the community from any future outbursts, if you will, or plots, I’m going to require the computer monitoring and access to his phone devices, as well,” Bongiovanni decided on Tuesday for defendant Timothy Hale-Cusanelli.

And in Des Moines, Iowa, Magistrate Judge Celeste Bremer said defendant Douglas Jensen – who was seen wearing a QAnon shirt, chased a Capitol Police officer up the stairs toward the Senate chamber and believed he was supporting a push for Trump to declare an insurrection against Congress – didn’t do enough to merit him staying in jail. “Defendant’s involvement in the riot and invasion of the U.S. Capitol on January 6, 2021, is undisputed. However, the issue before the Court is whether any conditions of release would reasonably ensure the safety of the community and Defendant’s appearance, as required,” Bremer wrote. He should stay under house arrest and be blocked from using the internet, including on cell phones, the judge decided.

Federal district judges in DC are now taking a second look at whether the three men should remain detained until their trials. The DC-based judges, who function like appeals courts in this situation, haven’t yet ruled on Jensen, Hale-Cusanelli or Barnett.

A crowd versus an individual

While the riot of January 6 resulted in five deaths, including the shooting of a woman inside the Capitol and the death of a Capitol police officer, some defendants didn’t clearly commit violence against others. They may have smashed windows, or are charged with obstructing the certification of the Electoral College vote, according to the vast collection of charges.

Some of the defendants may have wanted to hurt lawmakers or could have, prosecutors argued. Others who’ve lived lawfully for years now subscribe to the Trump-era belief of rejecting government authority.

Taken together, it’s an unusual mob situation where prosecutors only have so many legal tools, and defendants’ liberties are protected under the law.

At times, defense attorneys have tried to make the argument that no one defendant was responsible, because an entire crowd was breaching the Capitol.

“A crowd was yelling treason. That doesn’t mean Mr. Munchel was yelling treason,” a lawyer for Eric Munchel, who allegedly picked up the white plastic restraints inside the Capitol and is a gun enthusiast and Trump supporter, argued in court in Tennessee. Munchel – who became one of the most intimidating viral figures from the siege – shouldn’t stay in detention, a federal magistrate judge in Nashville agreed Friday night.

The judge, Jeffrey Frensley, considered the Justice Department’s request to keep Munchel in jail for almost five hours on Friday, calling his actions “shocking conduct.” But, the judge pressed prosecutors, is that enough to keep him detained? Would Munchel have done what he did if there wasn’t a crowd on January 6? “Are you aware of any rallies in the future where that conduct will happen?” the judge asked.

The prosecutor couldn’t answer.

Frensley, after reaching his decision, noted Munchel had minimal criminal history and would likely be willing to face his charges and be respectful of law enforcement. “What happened at the Capitol is difficult to watch,” Frensley added. “Mobs are dangerous. They’re inherently dangerous.” But the judge said he didn’t believe Munchel went to the Trump rally in Washington with the intention of harming lawmakers.

An investigation in its infancy

The situation is further complicated because the cases against Capitol riot defendants are still in their earliest stages.

“The problem for the government is they don’t want to get ahead of themselves, and charge someone with sedition if they don’t have the evidence,” said Jonathan Jeffress, a defense lawyer with the firm KaiserDillon in Washington, DC, who previously worked as a federal public defender. “They’re keeping charges fairly low, but if you keep charges low, you might not be taken seriously on your detention request.”

So far, the Justice Department has charged more than 125 defendants related to the Capitol riots. The charges have largely functioned as placeholders – the types of complaints that allow authorities to make arrests, search homes and pursue broader investigations that could go before a federal grand jury in the coming days. Many of the cases stick to bare bones allegations, based on livestreamed video or social media posts, and accuse rioters of disorderly conduct and entering restricted property. Some of the rioters have turned themselves in to police and already admitted their alleged crimes.

But none of the cases yet have formally become guilty pleas. For defendants who want to fight their charges, grand juries sitting in DC have been slow to churn out more robust indictments at the same rate as prosecutors are opening cases.

The sheer numbers – so many cases, dozens of defendants, few judges in Washington, so many leads for investigators to pursue – has created a bottleneck. As the investigations continue, the defendants still need to go before judges quickly to see if they will stay in jail.

Prosecutors have agreed to let many of the rioters be released, with orders to stay away from DC. Some, like Olympic swimmer Klete Keller, were even allowed to turn themselves in after being charged.

A few defendants have been put under slightly stricter terms – home detention or GPS monitoring, for instance – or are being held in jail a bit longer until prosecutors or the court learns more.

Detained pending trial

A handful of defendants facing the most serious charges will stay in jail, judges have decided, deeming them flight risks or threats to public safety.

Magistrate judges in Washington have held marathon hearings nearly every day this week to process the new defendants.

“If I had a more concerning threats case come before me, I don’t remember it,” Magistrate Judge Michael Harvey of the DC District Court said about one of the defendants, Cleveland Meredith Jr., who is alleged to have threatened to shoot Pelosi and DC Mayor Muriel Bowser and brought a trailer of ammo and an assault rifle to the city.

Meredith’s detention proceedings spanned two days, after a public defender in Washington argued his threats alone were not enough of a serious crime to keep him in jail. He hadn’t actually committed the violence, in short.

Harvey decided to keep Meredith detained.

Other defendants’ lawyers have tried similar arguments to have their clients released.

Typically, prosecutors can make the case more easily to detain defendants with past criminal records. But in the situation of the Capitol violence, many of the defendants had no such rap sheets.

“Seventy percent of Republicans believe that the election was fraudulent,” a temporarily appointed defense lawyer argued in rural Virginia earlier this week, at the detention hearing for Thomas Caldwell, who’s accused of leading a group of right-wing militants in their plans to overrun the Capitol. The lawyer, Lisa Lorish, argued Caldwell’s opposition to Biden’s election wasn’t out of the ordinary among the general public – and noted Caldwell was a retired Navy veteran. Destruction of government property, which he’s also accused of, wasn’t a violent crime, she added.

But the judge disagreed, deciding that Caldwell might obstruct justice and could endanger the community.

Caldwell has not yet been indicted. Prosecutors said he could face more serious charges.

“The conduct and statements of Mr. Caldwell and the others, it really is just pure lawlessness,” Magistrate Judge Joel Hoppe of the federal court in Harrisonburg, Virginia, said on Tuesday. He decided to keep Caldwell in jail as he is moved to Washington, DC, to face more proceedings.

Lindsay Benson and Marshall Cohen contributed to this story.