Why Senator Padilla Must Be Charged

Hundreds of ordinary Americans had their lives destroyed by the Biden Justice Department's policy choices in how it prosecuted January 6 defendants.

Title 18 of the United States Code, Sec. 111 provides as follows:

Hundreds of persons charged and convicted of this crime in connection with the events of January 6 at the United States Capitol. I represented more than 25 of those defendants. I spent hundreds of hours watching video evidence of not just my own clients, but dozens/hundreds of other January 6 defendants for the purpose of making comparisons. I knew the District of Columbia judges had also watched video of dozens of other January 6 defendants in other cases, and internalized a spectrum of “bad conduct.” There was no way for the Judges to forget what they had seen other defendants in the video evidence they had watched previously. So my approach always took into consideration what other defendants before a particular judge had done when trying to distinguish or analogize my client’s conduct — whichever was in my client’s interest — as reflected on the video.

The spectrum of offense conduct that the Biden Justice Department enveloped under the umbrella of the extremely broad statutory language of Sec. 111(a) is hard to describe with any precision. But the most important lesson to be learned from that language is that “assault” is only one of six verbs describing conduct that Congress criminalized with this statute.

This point was driven home to me in my first trial of a January 6 case when I was arguing for an acquittal of my client during closing argument in a bench trial. When I focused on the work “assault” the judge pointed out the broad reach of the statute to conduct not involving “assaultive behavior,” and then asking me — paraphrasing the judge:

Wouldn’t your argument be more appropriately addressed to me at sentencing — that your client’s conduct fell short of assaultive behavior and as a result the sentence imposed should reflect that? But his conduct nevertheless violated the statute with respect to the non-assaultive behavior that was also criminalized by Congress? Resisting, impeding, etc. Can’s conduct short of assaultive-behavior still violate those other provisions of the statute?

The judge convicted my client, but made a specific finding that my client had not “assaulted” any officer while still violating the statute nonetheless, and imposed a very modest sentence as compared to quite harsh sentences given to co-defendants who the judge found had actually assaulted officers in the same sequence of events.

That is just one example of conduct directed at federal law enforcement officers that is relatively benign as an objective matter, still meets the statutory definitions of a felony under Section 111(a). The penalty provision states that “physical contact” with the victim — the officer — makes the offense a felony and not a misdemeanor. The Biden DOJ made use of this penalty provision to charge hundreds of January 6 defendants with felony “assault” — the description it put in charging documents and press releases — in nearly every case where the January 6 defendant placed his hands on a Capitol Police or Metropolitan Police officer.

It is also meaningful to understand that actions in response — even self-defense — to the action of the officer can be the basis of a criminal charge. It is not a defense to a Sec. 111(a) charge that the defendant was only reacting to what the officer was doing and thereby trying to defend himself. If the officer’s conduct is a lawful use of the force as given to him by law as a sworn peace officer, then you have no right to resist him even if you think it is “self-defense” to do so.

I’m not going to re-vicitimize my clients by identifying them or posting video from their cases. Instead, I’m going to do to Padilla what DOJ prosecutors did to my clients at trial and during sentencing hearings. Below are screen shots dissecting Padilla’s conduct on a moment-by-moment basis and pointing out each instance where his conduct — non-assaultive or otherwise — would have been a basis for a felony charge at the Capitol on January 6.

When I started looking at the video, the first thing I learned is that the press conference had been underway for 6 minutes when Padilla entered the room. He entered while Sec. Noem was still reading her prepared remarks. There are several people at the front of the room flanking Sec. Noem on both sides. There are several rows of chairs in front of the podium she was standing behind, and many camera crews behind and around the sides of those chairs.

Padilla moved down the side of the room to Sec. Noem’s left and reached a position no more than 10 feet away from her and started speaking above her — she was still in the middle of her prepared remarks — and was immediately confronted by law enforcement and they began to push him back along the wall to her left towards the door he had entered. At first they were successful and he had his back to the officers as they pushed. THEN HE TURNED TO FACE THEM AND PUSHED BACK trying to continue making his statement. It is only at that point that he identified himself as Senator Padilla.

Here is a screen shot from a video when law enforcement first move to encounter him.

Here is another angle.

The next sequence of screen shots take place over about 4 seconds, and they appear below in the sequence they appear in the video. Track Padilla’s physical location, and his change of direction, based on the people around him. Note that he initially is moved farther away from Sec. Noem by a distance of about 12-15 feet, and then he pushes his way closer to Sec. Noem by about 5 feet before a second agent joins in and two then push him not only backward but up against the wall.

The next one has text at the bottom which is what is heard on the audio — “I’m Senator Alex Padilla.” That is the first time he identifies himself. Here is a link to this video, at :07 on the counter at the bottom you clearly hear him say “I’m Senator Alex Padilla.” Up to this point there is no audio of him identifying himself at an earlier point in this confrontation. This confrontation begins and continues for 7 seconds before he announces who he is.

This sequence is noteworthy because this is where Padilla moves forward into the officers who have been up to that point pushing him to the rear. This is “opposing” and/or “resisting” them while they are engaged in their official duty, even if it is not “assaultive-behavior.”

In the next screen shot he is shown now leaning into the officer directly in front of him in order to move in the direction of Sec. Noem again. Note the individual holding a cell phone in the right side of the frame above. That individual has moved to the left side — almost out of the frame — in the screen shot below. This happened because the person filming this video was tracking Padilla from left to right as he moved back towards Sec. Noem, attempting to push through the officer blocking his path. In the frame above you can see that Padilla has turned his left shoulder towards Sec. Noem to re-orient his torso relative to the officer, and in the frame below you can see the officer has adjusted his position to get back between Padilla and Sec. Noem

At this point a second officer joins in, coming from behind Padilla to assist.

Next you see three Officers — the first two now joined by a black Officer — pushing Padilla up against the wall.

The way someone avoids a “resisting,” “opposing,” “impeding” or “interfering” charge in this situation is to turn around and walk out under your own power when given a lawful instruction to do so — whether you agree with it or not.

In trial the Government would put an FBI Agent on the stand and show a sequence of events like this from 3-4 different cameras. The FBI Agent would then narrate the video, using still images to point out specific issues that might not be obvious when the video is simply played.

Before you knew it, the Agent had testified for an hour about a sequence of events that was captured in 15-20 seconds of video.

The entire sequence above — from the first screen grab to the last — took only 16 seconds.

But this is how the Biden DOJ built Sec. 111(a) cases and then proved them at trial. Nothing about the video above or how I have presented it is different that what hundreds of January 6 defendants had done to them. First screen shots were used in the Criminal Complaint Affidavits with the Agent’s narration provided in the text of the affidavit between the shots in the same way I did above.

The same kind of “physical contact” and failure to comply with lawful directions to leave served as a basis to charge a Sec. 111(a) offense even without “assaultive behavior.” Padilla’s conduct here borders on assaultive behavior as defined by judges in the D.C. District — “forceful unwanted touching.”

After Padilla has his back to the agents as they are pushing him away from Sec. Noem, then he turns back in their direction and attempts to put his left shoulder between the two officers blocking his way — that was described over and over again in D.C. as an “attempt to breach the police line” or “pushing past officers” and therein making physical contact.

January 6 defendants — even some with only misdemeanor charges against them — had their lives destroyed by the way the Biden DOJ handled their cases. The level of exaggeration employed to demonize them by describing their actions in the most egregious possible terms — not just hyperbolic but even to the point of dishonesty in service of character assassination — has altered their lives in ways that can never be reversed.

And this happened to many who did far less than Sen. Alex Padilla did in the Federal Building in Los Angeles.

The exercise of prosecutorial discretion in the making of a decision to not charge him for his actions — even if it is the Trump DOJ that would make that decision — would prove two things beyond a shadow of a doubt:

1. There is a two-tier system of justice where the well-known and political class can get a “pass” based on an objective observation that their conduct — even if illegal — was relatively benign and not worthy of a criminal prosecution. This is compared to ordinary folks of no particular notoriety who were dragged out of their beds at 6:00 am by an FBI SWAT Team raid, long guns pointed at them and their families while in their night clothes, then detained in custody and transported across the country to appear in a court after being charged with “assaulting” law enforcement— all based on conduct as benign — if not more benign — that what Padilla is captured on video doing.

2. Had the same exact conduct that took place on January 6 at the Capitol happened at any other location in the country on any different day, there would not have been a nationwide dragnet to arrest and charge 1600 people with felonies and misdemeanors. They would not have been drug across the country, with many subjected to detention pending trial while ignoring a lifetime of law-abiding conduct and/or service to their country, classify them as “domestic terrorists,” then look on without concern while that classification was used to destroy their lives financially and personally.

Not charging Padilla would simply confirm all the claims made about the injustice visited upon most January 6 defendants IN THE MANNER IN WHICH THEIR CASES WERE HANDLED. That is not a claim by me that any number of January 6 defendants were factually innocent — some were, but not all.

Not charging Padilla would set in concrete the view that the January 6 prosecutions always had an ulterior motive, and the process was the punishment regardless of the nature of the offense.

The Biden Justice Department and Sen. Padilla have tied Attorney General Bondi’s hands. She cannot exercise of prosecutorial discretion by opting to not charge Sen. Padilla.