Why Ken Buck is Wrong About J6 Defendants

Buck's uninformed endorsement of the DOJ's selective, abusive prosecution of January 6 defendants earned swift--and justified--condemnation as the matter becomes a top election issue for GOP voters.

U.S. Representative Ken Buck’s big wet sloppy kiss to Attorney General Merrick Garland last week could not have come at worse time for the Colorado Republican.

Judge Timothy J. Kelly of the federal court in Washington, D.C. was in the process of ordering prison time typically applied to murderers, drug traffickers, and serial child pornographers for five members of the Proud Boys convicted of no serious crime related to January 6. A well-known gun storage company faced backlash for assisting the FBI in yet another armed raid against a January 6 trespasser. And a young man from Utah took his own life just weeks after his arrest on four misdemeanors for his participation in January 6, at least the fourth known suicide of a Capitol protester.

The political Right fumed with rage on social media. Some Republican lawmakers and presidential candidates also cried foul. “This is wrong & it’s sad that I’m the only candidate with the spine to say it,” Vivek Ramaswamy posted on X on September 5. Florida Governor Ron DeSantis, who has attempted to downplay January 6 as a political concern, also denounced the unequal treatment of January 6 protesters. “They may have been violent, but to say it’s an act of terrorism when it was basically a protest that devolved into a riot, to do excessive sentences—you can look at, OK, maybe they were guilty, but 22 years if other people that did other things got six months?” DeSantis said during a Newsmax interview on September 6.

But the brazen double standard is of no worry to Rep. Buck, who happens to sit on the House Judiciary Committee. At the same time the J6-related maelstrom gained steam last week, Buck authored a scornful and mostly fact-free response to a letter signed by more than 200 members of the Colorado Republican Party demanding that elected officials in their state address the plight of January 6 defendants.

While the initial premise of the letter is incorrect—January 6 defendants have not been denied bond on misdemeanors or imprisoned for years pending charges—the petition expressed a sentiment widespread among the GOP base: Trump supporters and those who protested Joe Biden’s election on January 6 are being unfairly targeted by Joe Biden’s Department of Justice.

A sentiment, by the way, that is accurate by every measure.

Passing the Buck

Buck began his reply by clarifying the misconception that hundreds are detained awaiting trial or charges but then pivoted to a full-throated endorsement of what’s happening to January 6 defendants. His Pollyannaish view of the D.C. legal and judicial system is animated by ignorance, to put it kindly. Buck, like so many former federal prosecutors, continues to defend the DOJ despite the institution’s cratering credibility and well-documented partisanship.

And contrary to Buck’s accusation that the GOP’s letter “overstate[d] the threat to the Republic,” the ongoing criminal prosecution of thousands of American citizens is establishing dangerous precedent to criminalize political activity and designate a long list of bogus charges as new federal crimes of terrorism.

So, what specifically did Buck get wrong? From pooh-poohing the creation of a political prison in the nation’s capital to peddling the notion that Trump supporters are getting a fair shake in a city that voted 93 percent for Biden, Buck misrepresents the reality of the situation:

Buck: “Your letter claims that January 6 defendants have suffered physical abuse and injury and further suggests that they are being singled out for their political beliefs.” Isn’t the mere existence of a section of the D.C. jail system reserved only for January 6 defendants enough proof that those individuals have been “singled out?” Numerous inmates have been subjected to physical and emotional abuse, prompting the transfer of a handful of detainees to other facilities; two of Buck’s colleagues visited the DC Gulag on numerous occasions and wrote a report describing the appalling conditions. Rep. Marjorie Taylor-Greene, the most vocal advocate in Congress for January 6 defendants, called out Buck on X for not visiting the jail when given the chance.

Perhaps the jail’s use of solitary confinement for January 6 defendants is acceptable to Buck. Or the fact that the deputy warden posted racist, anti-Trump screeds on social media. Or how defendants were denied access to in-person attorney visits if they refused the COVID jab. Or how jail guards distributed a Nation of Islam newspaper as the only reading material. Or how some mocked the J6 defendants when they sang the national anthem each night. But in Buck’s view, none of this represents a “singling out” of inmates based on their political beliefs. LOL.

Buck: “There have been no substantial allegations that the government violated the 4th, 5th, or 6th Amendments in prosecuting January 6 defendants.” One must wonder from where Buck is getting his information—certainly not from defendants or their attorneys who have argued in hearings and court motions that those rights are being systematically defiled.

Does Buck believe armed FBI raids with rooftop snipers, military-style vehicles, and battering rams is appropriate for individuals accused of obstruction of an official proceeding or even assaulting law enforcement? Does Buck approve of the use of geofence warrants to scoop up data from Americans who traveled to Washington in January 2021 including those who did not participate in the Capitol protest? Does Buck agree that banking institutions, Big Tech, and other major corporations should work hand in glove with the FBI to identify misdemeanants, or worse, those accused of no crime at all?

Perhaps Buck trusts that an impartial jury can be seated in a nearly 100 percent Democratic city where jury pool surveys indicate higher levels of contempt for Trump and his supporters than comparable jurisdictions. Certainly, DOJ’s almost perfect conviction rate for January 6 defendants is not indicative of a rigged system that favors the government, right Ken Buck?

Buck must be blissfully ignorant as to how DOJ dragged out trial proceedings for high-profile cases such as the Proud Boys and Oath Keepers while keeping some behind bars for nearly two years on nonviolent offenses before jury selection began. Or how every judge has denied every change of venue motion despite overwhelming conflicts posed by wall-to-wall news coverage in Washington and televised hearings of the January 6 Select Committee, which also convened in Washington; in just one example, a September 2022 motion filed on behalf of the Oath Keepers argued the defendants’ Fifth and Sixth amendment rights were at risk if the trial was not moved out of Washington, D.C.

What does Buck think about the profligate use of FBI informants before and on January 6? Judges, at the behest of DOJ, have helped conceal the extensive role of FBI informants from jurors. Does constitutional expert Ken Buck believe that represents a violation of the Sixth Amendment? What about the hours of security footage kept from defendants and their attorneys? Or missing records from former House Speaker Nancy Pelosi or Capitol Police or the Secret Service? Does any of that rise to the level of potential Brady material, Mr. Former Prosecutor?

I must have missed Buck’s vocal demands to make all the surveillance footage and government files related to January 6 available to the accused, you know, to defend the Constitution and whatnot.

Buck: “While many January 6 defendants have decried the process they face as unfair, it is the process every federally indicted criminal defendant in this country goes through.” Do tell, Congressman Buck. First, that analysis demands the belief that the novel use of obstruction of an official proceeding—a post-Enron scandal law enacted to address tampering with evidence—against more than 300 January 6 protesters is legitimate. It also requires agreement with DOJ that the use of seditious conspiracy, a Civil War era law tantamount to treason for which no American had ever been convicted before January 6, is appropriate.

DOJ is successfully wielding those laws in an unprecedented manner, something even DOJ prosecutors and the D.C. appellate court admit is true. Perhaps Buck can cite a few comparisons between citizens previously charged with obstruction or seditious conspiracy and January 6 defendants to prove this is all just standard operating procedure. (Hint: He cannot.)

One needs to look no farther back than the 2020 Lafayette Square riots in Washington to quickly disprove Buck’s assertion that all “federally indicted criminal defendants” have experienced the same process as J6ers. To the extent any of those rioters, who engaged in far more destructive and dangerous conduct than anyone tied to January 6 and did so for weeks not hours, were charged with federal offenses, DOJ has since dropped every case. Matthew Graves, the U.S. attorney for the District of Columbia, confirmed that during Congressional testimony earlier this year.

Buck further insisted Eighth Amendment rights that protect defendants from excessive sentences or cruel and unusual punishment have not been violated. Perhaps Buck doesn’t know about a decision issued in February 2021 by then Chief Judge Beryl Howell that established special pretrial detention rules strictly for January 6 defendants. Or how those convicted of assaulting police officers have been sentenced to far more jail time than what is common in Washington or any other major city. Can Buck point to another individual with no criminal record accused of using pepper spray against police being sentenced to 80 months in jail, as is the case for Julian Khater?

In fact, the D.C. Circuit court might want a word with Buck. A three-judge panel just blasted the lower court for unlawfully imposing both prison and probation to dozens of defendants convicted of the petty offense of “parading” in the Capitol. (By the way, Congressman Buck, Judge Howell acknowledged in 2021 that the federal courts rarely if ever deal with Class B misdemeanors—except for J6ers.) One district court judge admitted he ordered three years’ probation in additional to jail time for one Trump supporter so the government could keep tabs on the man and make sure he did not “fall victim to false Gods again” during the 2024 election cycle.

Not political, you say, Congressman Buck?

But Buck doesn’t have to take my word for it: DOJ devotes an entire portal to what it calls the “Capitol Breach” investigation. (If that alone doesn’t disprove Buck’s claim that none of this is political, I’m not sure what does. Imagine a “BLM Riots” webpage at DOJ with constant updates and alerts.) Currently, a 68-page chart documents all the sentences handed down in January 6 cases. Buck should review this file then substantiate his argument that no one is being “singled out” with comparable cases and sentences.

Buck: “I hope this letter…clarifies why it is inappropriate to suggest that these are being singled out for their political views.” This is perhaps the most inaccurate, and insulting, line of all. Perhaps Buck can explain that to Robert Reeder, a man from Maryland who traveled to D.C. on the spur of the moment to demonstrate against what he believed was a rigged election. DOJ cited various memes Reeder posted on Facebook that mocked Joe Biden, Nancy Pelosi, and other Democrats as proof of wrongdoing in his sentencing memo. (Reeder was sentenced to four months in prison after pleading guilty to “parading.”)

In fact, DOJ routinely cites memes, social media posts, and group chat messages critical of the election and in support of Donald Trump as incriminating evidence against January 6 protesters. D.C. judges still ask defendants if they believe the 2020 election was stolen, berating those who continue to support the president. “I have a concern that we have, unfortunately, American citizens who were so gullible that they were willing to accept what was being said without any proof that the allegations about the election had any merit whatsoever," Judge Reggie Walton told a January 6 defendant in April. “[We] have charlatans like our former president, who doesn't in my view really care about democracy, but only about power.”

There is a long catalog of similar comments made by D.C. judges—and if Buck followed my reporting rather than the corporate media outlets he cited in his letter, he would know about the inner workings of D.C. courtrooms. Of course, he could’ve walked a few blocks from the Capitol building to the E. Barrett Prettyman courthouse any time over the past two years to catch the action in person. But he did not.

In closing, Buck directed his own constituents to focus on matters he considers more important to the well-being of the country:

“For Freedom?” Really?

Amid criticism, Buck dug in heels, visiting MSNBC’s Jen Psaki no less to explain his views of January 6 and opposition to impeaching Joe Biden.

With Republicans like these…