Federal judge delivered a split verdict Tuesday to the founder of the group “Cowboys for Trump” who was the second defendant to be tried for their role in the Jan. 6 attack on the US Capitol.
Couy Griffin, a county commissioner in New Mexico, was arrested 10 days after the Capitol riot and faced two misdemeanor charges of entering and remaining in a restricted building or grounds, and disorderly conduct.
In his ruling Tuesday, Judge Trevor McFadden found Griffin guilty on the first charge but not guilty on the charge of disorderly conduct, saying the government failed to meet its burden of proof that Griffin sought to rile up or otherwise join others in the crowd in acting out
Griffin faces up to a year in jail and potential fines when he is sentenced in June.
Griffin was not alleged to have physically entered the Capitol building or to have participated in any violence, but prosecutors said he climbed over and a wall before arriving at an area near temporary scaffolding that was put up in advance of President Joe Biden’s inauguration. Griffin stayed in that location for more than an hour, according to investigators, and was seen in videos cheering on the crowd and leading a prayer with a bullhorn.
Key to the government’s case was proving whether Griffin knew he was joining the pro-Trump mob in a restricted area that had been established to protect former Vice President Mike Pence as he presided over Congress’ certification of Biden’s election win.
Griffin’s attorneys had argued his case should be thrown out because there was no evidence that Pence was present in the building at the time Griffin was inside the restricted area.
Leading up to Griffin’s trial, prosecutors clashed with Judge McFadden over whether Griffin’s attorneys should be permitted to cross-examine a Secret Service agent who the government called as a witness regarding Pence’s location throughout the time of the riot. The agent, Lanelle Hawa, had been tasked with overseeing security for Pence on Jan. 6.
In her testimony on Monday, Hawa gave the first on-the-record confirmation from the agency of a detail previously reported by ABC News’ Jonathan Karl — that Pence was escorted underground to a loading dock area where he remained for “several hours ” as the mob stormed through the Capitol.
The government initially contended that information about the precise location to which Pence was evacuated was so sensitive that it could hinder the Secret Service’s protection mission moving forward — but Judge McFadden insisted that it was key to the government proving its case against Griffin.
During Monday’s hearing, assistant US attorney Kimberly Paschall was also pressed by Judge McFadden over surveillance video from the Capitol Police that Paschall said showed Pence’s location and movements during the riot, but were not turned over to Griffin’s defense team because Capitol Police had not given its approval for the footage to be shared with third parties.
McFadden refused to give the Capitol Police additional time to release the video to Griffin’s team, and told prosecutors they could choose to drop the case if they wished. The Justice Department reluctantly decided to move forward, and provided a redacted version of the surveillance footage to Griffin’s attorneys. However, the footage was not played in open court.
Instead of facing a jury, Griffin had opted for a bench trial, leaving his fate in the hands of Judge McFadden, a Donald Trump appointee who has in the past raised questions about whether the Justice Department has been “even-handed” in its approach to the Jan. 6 riot, which took place amid the racial unrest following George Floyd’s death in the summer of 2020.
Ahead of Tuesday’s closing arguments, McFadden said the government had effectively proved that Griffin was in an unauthorized area during the riot, but urged prosecutors to focus on whether Griffin was there “knowingly” and if his actions amounted to “disorderly conduct.”
Assistant US attorney Janani Iyengar said Griffin’s movements on the Capitol grounds that day — climbing over a stone wall and using a flipped-over metal bike rack to help climb over another barrier — would indicate to “any reasonable person” that they were in an area where they weren’t supposed to be.
Prosecutors also pointed to Griffin’s conduct in the days following the riot, when he posted videos to his Facebook page saying that he had “climbed up on the top of the Capitol building and … had a first row seat,” and called for another “Second Amendment rally” outside the Capitol, saying, “if we do, then it’s going to be a sad day, because there’s going to be blood running out of that building.”
A week after that, Griffin said in a New Mexico county commission’s meeting that he planned to return to Washington, DC, carrying his revolver and his rifle.
Griffin’s traveling partner on Jan. 6, Matthew Struck, served as one of the government’s key witnesses and was given immunity to testify against him. The prosecution displayed several videos shot by Struck during the riot, showing his dele and Griffin’s movements outside the Capitol.
Struck initially handed over a collection of videos to the Justice Department in January of 2021, but Judge McFadden chastised prosecutors on Monday after it was revealed over the weekend that last week the Justice Department had received an additional cache of videos from Struck, including two more that showed Griffin on the Capitol’s restricted grounds. McFadden allowed the government to introduce two of the newly disclosed videos that he said would have fallen within its original request to Struck, but barred prosecutors from introducing the others, given their last-minute disclosure to Griffin’s attorneys.
The verdict in Griffin’s case comes three weeks after prosecutors secured the conviction of the first Jan. 6 rioter to stand trial, Guy Reffitt, on five felony charges. He potentially faces years in prison when he is scheduled to be sentenced in June.
As of Tuesday, approximately 770 individuals have faced federal charges in connection to the Jan. 6 assault on the Capitol — roughly 220 of whom have pleaded guilty in their cases, according to an ABC News analysis.