As the investigation drags on, Jan. 6 defendants win more freedom

McCall Calhoun, an attorney from Americus, was among the hundreds in a pro-Trump riot who forced their way into the U.S. Capitol Jan. 6, 2021. Calhoun was initially considered a danger and held without bond but has since been released so he can continue to practice law.

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McCall Calhoun, an attorney from Americus, was among the hundreds in a pro-Trump riot who forced their way into the U.S. Capitol Jan. 6, 2021. Calhoun was initially considered a danger and held without bond but has since been released so he can continue to practice law.

Credit: Twitter

Back in January, a federal judge deemed South Georgia resident William McCall Calhoun Jr. such a persistent danger to his community and the nation that he needed to be held in jail until a jury could decide his fate.

He wasn’t alone. Prosecutors recommended that Calhoun and dozens of others accused in taking part in the Jan. 6 riot at the U.S. Capitol by pro-Trump partisans be denied bail, and often judges agreed.

For instance, Magistrate Judge Charles Weigel said Calhoun had been “corrupted by or seduced by a dangerous and violent ideology that considers the United States to be in a state of civil war” and denied his request for bond.

Weigel had reason to fear Calhoun could not be allowed to return home. Following the riot, Calhoun had taken to Parler, a social media site popular among conservatives, and bragged about breaking into the Capitol.

“The word is we’re all coming back armed for war,” he wrote, according to court records.

And it wasn’t just words. When Calhoun was arrested, federal agents discovered an arsenal of weapons and ammo in his bedroom, including multiple assault rifles, shotguns and handguns, cases of ammunitions, knives and brass knuckles.

But just a few weeks later Calhoun appealed the decision and won. Instead of jail, he was released on his own recognizance, allowed to stay with his sister in Macon and resume his legal practice. And this week, Calhoun won even more freedom to stay by himself in his office apartment in Americus during trial weeks when driving the hour-plus to and from Macon was inconvenient.

Calhoun is not a special case. Scores of defendants in the massive Jan. 6 investigation initially jailed have since been freed on bond. And among those from Georgia, several recently have petitioned to have their bond conditions loosened.

Buddy Parker, a former federal prosecutor and current defense attorney in Atlanta, said bond decisions involving the nearly 600 people so far charged with crimes related to the events of Jan. 6 have been influenced by a number of factors.

In their initial appearances, magistrate judges were making decisions to keep defendants in jail “more along the lines of the nature of the offense” and siding with prosecutors concerned about a possible continued insurrection against the government, he said.

“As time went on, there was more of an understanding of the types of activities that different defendants engaged in, some merely entering into the Capitol building, walking around and leaving,” he said.

Some of the rioters benefit from the fact that United States does not have a domestic terrorism law, so the charges some face are more mundane.

“A lot of the cases are being tried on relatively minor federal charges, like trespassing and the like,” said Clifford Bennett, a researcher with the George Washington University Program on Extremism.

The people who battled police in fierce hand-to-hand combat on the Capitol steps and forced their way inside, kicking in doors and calling out for congressional leaders as they attempted to stop the certification of the 2020 presidential election, face more serious charges. And some have been less successful winning release.

Locust Grove resident Jack Wade Whitton was arrested in April and charged with assaulting police in brutal violence on the Capitol’s West Terrace. A judge in that case ordered Whitton be jailed and cited his apparent lack of remorse as one reason.

Release valve

Other factors may be driving judges’ decisions on whether to grant bond. The extraordinary pressure created by investigating hundreds of defendants caught on thousands of hours of video has meant that individual cases are moving very slowly. Only a handful of defendants have pleaded guilty and even those have been to lower-level charges.

Parker said the federal system could not house them without bond.

“To release the pressure on the system, one needed to begin to allow individuals to be released on bond, notwithstanding the nature of the offense committed,” he said.

Bruno Cua, who was just 18 when he shoved his way onto the Senate floor, was among those denied bond after his arrest in February. He was released a month later after he contracted COVID-19, and initially confined to his home and three-acre property in Milton under the supervision of his mother, who had taken him to Washington for the Trump rally.

Cua has since had multiple revisions to his bond conditions. In June, a judge granted Cua’s request to be allowed to go to Cherokee County to visit his grandmother, work on an undeveloped plot of land near Monticello, and work on his family’s Milton ranch unsupervised. And earlier this week, the same judge agreed to allow Cua to travel unsupervised around North Georgia for work, albeit while wearing a GPS monitoring device.

‘Clear danger’

Federal law requires defendants be offered the least restrictive bond conditions that will “reasonably assure” they show up for court. It’s up to prosecutors to prove that a suspect cannot be released on bond because they could flee justice or they are a danger to their community. That’s a high bar for many of the Jan. 6 suspects, most of whom had no prior criminal history and many of whom don’t have the resources to run.

Prosecutors have argued — with some success — that the anti-government rhetoric or activities of some defendants makes them too dangerous to release. A lack of past criminal acts is often a strong argument for relaxed bond conditions, but so many Jan. 6 defendants went public that day with their actions and opinions that prosecutors say they are an ongoing threat.

Lisa Marie Eisenhart, a nurse from Woodstock who was arrested shortly after the Capitol raid and charged alongside her son in an 11-count indictment, was given bond by a magistrate judge in her initial appearance. But the district court judge in Washington, D.C., sided with prosecutors and held her without bond. Both she and and her son, Eric Gavelek Munchel, successfully appealed that ruling and were released after nearly three months in jail.

Eisenhart has now asked that her bond conditions be further relaxed. In a motion filed earlier this month, she asked a judge to remove her GPS monitor and curfew.

“Beyond the cost and time savings to U.S. Probation, Ms. Eisenhart would also benefit from a release that will better allow for exercise and other routine activities of daily life,” her attorney wrote in an Aug. 10 motion.

Prosecutors oppose the request, pointing to her statements to the press on Jan. 6 that she would rather fight and die than “live under oppression.”

“Eisenhart’s words and actions on January 6 and afterwards evince a clear threat to the safety of the community,” prosecutors wrote in a motion filed this week.

At the time of her arrest, the judge took those words seriously, saying Eisenhart showed a willingness to be a martyr and was a “clear danger to our republic.” Prosecutors say nothing has changed since then and she needs to be monitored closely. The judge in that case has yet to rule on the proposed new bond conditions.

Not every defendant is free. Cleveland Grover Meredith, a one-time metro Atlanta car wash owner and a QAnon adherent, missed the Jan. 6 riot because of car problems. Instead, he checked into a Washington motel and began sending violent text messages, threatening Pelosi and others. When the FBI arrested him, they found an assault rifle, handguns and “hundreds of rounds of ammunition” in his possession.

A judge ordered him held without bail, which is where he remains despite his efforts to win release.