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The January 6 Capitol Protester Prosecutions
Punishing Thought Crimes and Eroding Freedom of Assembly
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Freedom-loving Americans have myriad reasons to be alarmed by the Department of Justice’s ongoing dragnet prosecutions of the Jan 6 Capitol protestors. Foremost among them, perhaps, is why many of these defendants are being prosecuted at all. Copious first-hand testimony and abundant videos available to the public — and the government has many more videos never publicly disclosed — show the Capitol police allowing many polite and unarmed so-called “rioters” into the Capitol, where they caused no harm. Are some of these now defendants? Moreover, a robust interpretation of the First Amendment’s “right of the people peaceably to assemble and to petition the Government for a redress of grievances” arguably protects some of the defendants’ actions.

Other troubling issues raised by the DOJ’s prosecutions include why the government has dedicated such immense resources to the prosecutions; why it has made such aggressive use of informants and secret FBI agents; why it has used shock and awe methods to effect arrests; and its inhumane treatment of the Jan 6 defendants while in pretrial detention. These are traits of a police state.

A further disturbing issue is the government’s — and unfortunately the courts’ — rationale for denying bail to many of the Jan 6 defendants, a rationale that glosses over Constitutionally critical distinctions between punishing conduct and punishing thought. The District of Columbia Court of Appeals’ recent decision in United States v. Timothy Hale-Cusanelli is a case in point.

Before discussing Hale-Cusanelli, a little background is appropriate on the Supreme Court’s cases addressing the Constitutionality under the First Amendment of punishing persons for “hate.” In its 1992 R. A. V. v. St. Paul decision, the Supreme Court struck down on First Amendment grounds a Bias-Motivated Crime Ordinance enacted by the City of St. Paul, Minnesota, that prohibited display of a symbol that “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” The Court held the ordinance impermissibly punished disfavored viewpoints, i.e., imposed prohibitions on those who expressed disfavored views on “race, color, creed, religion or gender” while permitting displays containing abusive invective that did not address those topics. By contrast, a year later in Wisconsin v. Mitchell the Court upheld a penalty enhancement law that increased the penalties for certain specified crimes of violence if the defendant selected the victim because of the victim’s “race, religion, color, disability, sexual orientation, national origin, or ancestry.” The Court reasoned that judges have traditionally and properly considered a wide variety of factors in sentencing, including the defendant’s motive. The Court distinguished the R. A. V. case, holding that the ordinance in R. A. V. was explicitly directed at protected expression while the statute in Wisconsin was aimed at unprotected conduct. While acknowledging “a defendant’s abstract beliefs, however obnoxious to most people, may not be taken into consideration by a sentencing judge,” it held the First Amendment does not prohibit evidentiary use of speech to prove motive or intent.

Against this background, consider the following facts about Timothy Hale-Cusanelli:

  • On January 6, 2021, he traveled to Washington to attend the “Stop the Steal” rally.
  • He had worked as a private security guard with a security clearance and was a sergeant in the army reserves with no incidents of violence or dereliction of duty.
  • He wore a suit and tie and did not bring any weapon.
  • He eventually made his way to the Capitol, where he entered through doors that had already been kicked open.
  • He later admitted to a Confidential Human Source (”CHS”), who secretly recorded their conversations, that he had participated in the events on January 6, specifically that he had used voice and hand signals to urge others to “advance.”
  • In a recorded conversation with the CHS, Hale-Cusanelli stated that it was “only a matter of time” before a civil war broke out “along partisan lines” and that he “really wishes” there would be a civil war. When the CHS interrupted and said “but a lot of people would die,” Hale- Cusanelli replied “Thomas Jefferson said the tree of liberty should be refreshed with the blood of patriots and tyrants.”
  • On January 29, 2021, he was indicted on seven counts involving trespass and disorderly conduct in connection with the events of January 6.
  • After his arrest, the government interviewed 44 of his coworkers, and 34 of them described him “as having extremist or radical views pertaining to the Jewish people, minorities, and women.”
  • Prior to January 6, he used a YouTube channel to upload a series of videos under the name “Based Hermes Show.” In the videos, he expressed views that the government characterized as racist and anti-Semitic.
  • The government found on Hale-Cusanelli’s cell phone a photo of him with a Hitler mustache and haircut.
  • The only arrest on his record occurred in 2010 when he was arrested with three other codefendants after one of them used a homemade PVC launcher (i.e., a potato gun) to fire frozen corn cobs at a home, in a dispute over a stolen bicycle, causing minor damage. Everyone in the house was white. The potato gun, however, had written on it “white is right” and a drawing of the confederate flag.
  • On March 23, 2021, the District Court denied bail to Hale-Cusanelli, thus keeping him in pretrial detention, after ruling he was “dangerous” within the meaning of the Bail Reform Act, i.e., “no condition or combination of conditions will reasonably assure . . . the safety of any other person and the community.”
  • The District Court acknowledged that were it ”just looking at what [Hale-Cusanelli] did on January 6, he would be a free man right now.” Nonetheless it ruled him dangerous and denied bail based, essentially, on three factors: the potato gun incident; Hale-Cusanelli’s “history of racist and violent language” including his statements about a civil war and his quotation from Jefferson; and concern that he might seek retribution in some way against the CHS.
  • After an appeal, on July 7, 2021, the District of Columbia Court of Appeals affirmed the District Court’s denial of bail based on Hale-Cusanelli’s “dangerousness.”

What is wrong with the District Court’s decision and the appellate court’s affirmance? Plenty.

First, the government’s and courts’ use of the potato gun incident would be laughable if it were not appalling. Not much cynicism is required to see it as an ignominious instance of the extreme lengths to which the government will go to prosecute persons whose views it finds unacceptable.

Second, none of the District Court’s three grounds for denying bail had any direct relationship to the trespass and disorderly conduct charges for which Hale-Cusanelli was arrested. His case, accordingly, differs markedly from the Wisconsin case in which the Supreme Court upheld penalty enhancement for violent crimes committed with racist motives. Hale-Cusanelli’s case is much more like the R. A. V. case, in which the Supreme Court disapproved punishing persons for their abstract beliefs. The rationale of the Hale-Cusanelli decision improperly allows the government to arrest a person on innocuous charges involving no violence, e.g., trespassing, employ its massive resources to ferret out the person’s disfavored views, then hold him in pretrial detention indefinitely based not on his conduct but on the “dangerousness” of those views — in other words, to punish him for his abstract beliefs.

Third, just what is so “dangerous” about Hale-Cusanelli’s views, which the government with great effort uncovered after employing a CHS, interviewing 44 of Hale-Cusanelli’s coworkers, and going through his computer and cell phone? That civil war is inevitable and may be desirable? There are probably millions across the political spectrum who agree with that sentiment. Suppressing such views does not abate, at least not for long, the divisive forces at work in the country. One may grant that posing in a photograph with a Hitler mustache and haircut is eccentric and unsavory, but is he to be imprisoned indefinitely for being an unsavory eccentric? And is quoting Jefferson now “dangerous”?

Finally, it bears emphasis that Hale-Cusanelli has suffered greatly for his expression of views that are protected under the First Amendment. Do not be misled by the euphemistic “pre-trial detention.” He is behind bars just as though he had been convicted and sentenced to prison. In fact, his punishment is more severe: in many federal prisons there is at least a semblance of humane conditions — libraries, gymnasiums — rarely found in pretrial detention. And if Hale-Cusanelli is acquitted — which he may be — he has no realistic hope of compensation for the de facto prison time imposed on him.

This kind of governmental overreach should not be happening in America or any country that respects basic civil liberties, and FEF strongly condemns it.

By Glen K. Allen, Esq., attorney for The Free Expression Foundation, Inc. (“FEF”), a 501c3 nonprofit. Support for FEF’s efforts to protect free expression and freedom of assembly are greatly appreciated and much needed. Contact:; 800-979-8891.

(Republished from The Occidental Observer by permission of author or representative)
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  1. Lee says:

    Have thought from the start that by the DOJ not allowing these protesters bail for their mostly misdemeanor crimes so as to get their pound of flesh from mostly Trump supporters before these cases are eventually settled for time served or dropped.

  2. nsa says:

    Useful idiots, one and all. Trumpstein directed his maga-morons to march on the capitol building, then bugged out and scurried back to his sty to watch the action on TV. The piggish Trumpstein could have issued a blanket pardon to his maga-morons before Jan. 20 along with all those jew financial criminals he saw fit to pardon, but instead wimped out and abandoned his gullible followers to the tender mercy of the local diversified court system.

    • Replies: @follyofwar
  3. It’s great to see your putting these legal-eagle details out there, Mr. Allen, but 2 things:

    1) Our common sense shows us the Anarcho-Tyranny right in front of our faces now. Anyone who can’t see this is someone who likely can’t be reached.

    2) That brings us to those who don’t WANT to be reached, that is, by details of law, due process. and compliance with that Old-Timey Consitution. Face it, “None Dare Call them Commies”, but it ought to be more apparent to any thinking American, that that is plain and simple who we are dealing with.

    Pointing out the legal-eagle details may help push some of the formerly politically-inactive to come on board, but it means noting to the other side. The internal enemies of patriotic Americans are plain old Communists, who, as Peak Stupidity says, have come crawling out of the woodwork again. It’s about that time and place in history. Let’s handle it right this time, for a change. Stock up – don’t worry about the prices.

  4. I’m sure that nobody EVER thought the jewing would get this bad.

    The BIG jews should be fucking ashamed…….you’ve gone waaaaaaaaaaaaaaaay over the line….

  5. The Jan 6. trials should become a precedent to justify the mass arrest of 2020 Trump voters and assignment of said voters to re-education/labor camps in order to rebuild the crumbling infrastructure that car-obsessed boomers destroyed.

    • LOL: follyofwar
  6. Great article – it’s important for analysis of cases like this to get out because it shows just how hypocritical and biased the judicial branch can be.

    One of the things that keeps a lot of regular conservatives in line is faith that the Constitution will invariably prevail – but the fact of the matter is that the folks pounding gavels and making decisions do not feel particularly indebted to the Constitution in any normal way.

  7. “he has no realistic hope of compensation for the de facto prison time imposed on him”

    Why not? Compensation for prisoners happens. Canada famously awarded $10 million dollar settlements to Mahar Arar and Omar Khadr.

    Arar was a Syrian who was scooped up after 9/11, and turned over to the Assad government by US secret rendition. (yes, Syria and the US were partners in the GWOT) After Amnesty International issued an Urgent Action on his case, he was released in 2003 and reunited with his wife in Canada. He claimed he was held in degrading and inhumane conditions in a Syrian jail, interrogated, and tortured for a year. Canada felt it had a role to play in his arrest, and awarded him $10.5 million in compensation and another million in legal costs.

    Canada apologized to former jihadi Omar Khadr and awarded him $10.5 million after he was released from Guantanamo. He had spent 13 years in various prisons. Canada’s reasoning was that it was somehow responsible for Khadr’s pain and suffering.

    You see, financial compensation can happen. The political prisoners of the January 6th Stop the Steal demonstration have an equal or much more provable case that they are being unjustly treated.

    If Amnesty International and the ACLU have any credibility left they should be advocating on behalf of the detained American protestors. Settlements in the millions should be on the table.

    • Replies: @Curmudgeon
  8. @nsa

    If Trump, after 4 years in office, in which he became the foremost enemy to thousands of deep state minions, didn’t realize he was sending his MAGA fanatics into a trap, then he was too dumb to be president. The tip off should have been when Pelosi denied his offer to send in the National Guard to secure the Capitol prior to his speech. Then he waited too long to tell his MAGA supporters to leave the building and go home in peace.

    Trump stabbed them in the back, just as he did to Julian Assange, whom he praised on the campaign trail for publishing some of Hillary’s emails. In addition to pardoning those Wall Street crooks (like Ivanka’s father-in-law) he also found it in his heart to pardon a few low life black rappers, while innocent James Fields rots in prison for life.

  9. @beavertales

    Canada was an active participant in both the Arar and Khadr cases. It was a Canadian Government agency the told the US that Arar would be a person of interest based on some dodgy, out of context information. The Canadian government did not respond to Arar’s request for help.
    In Khadr’s case, the Canadian government representative was disclosing information about Khadr, after his visits, to the US, and provided no assistance.
    The apologies from the government were for violating their rights as a citizen of Canada, nothing else.
    Of course the law suits filed against the government for violating their rights, helped a great deal.

  10. Phipps says:

    The “Justice” Department is infested with Jews. So is every other bureaucracy in Washington D.C. Jews hate white nationalists for playing the same game the Jews have always played: Clannishness and racial self-interest. White nationalists also know that ALL of America’s severe problems have Jews as the source. Thus, the cunning Jews go after white nationalists/conservative Christians.

    • Agree: goldgettin
    • Replies: @anarchyst
  11. onebornfree says: • Website

    “These are traits of a police state.”

    You don’t say.

    “Regards” onebornfree

  12. anarchyst says:

    It gets worse. Look up the “Office of Special Investigations”, a component of the so-called “U S justice department”, American taxpayer funded, totally staffed and run by jews. Its sole purpose is to “hunt for Nazis” and “bring them to justice”. They really f#cked up by going after John Demjanjuk that even the israeli “supreme court” ruled in Demjanjuk’s favor. Of course, they didn’t stop there, getting his American citizenship revoked and him eventually deported.
    It’s these same jewbastards who are insisting that Poland remove the existing owners of Polish-owned real estate and turn over the property to the jews. Sick, sly criminal bastards.

  13. Thomasina says:

    When the Capitol Police removed barricades, didn’t the protesters essentially then become “invitees”? An “invitee” is:

    “A person who enters land with permission of the owner, and does so either to confer an economic benefit on the possessor, or is entering premises that are open to the general public.”

    Pelosi was warned ahead of time that more police were needed. She did not respond because this is exactly what she (and every member of Congress on both sides) was after – a phony “insurrection”.

    Release the thousands of hours of video – all of it. If the police remove barricades and invite you in, then you are an invitee.

  14. Trump did his supporters a great service by turning up late. It kept most of them away from the action at the Capitol. No doubt, to Nancy Pelosi’s chagrin. Funny, how that Capitol invasion began just as objections to Arizona’s vote were being made. How convenient?

    • Agree: Thomasina
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