“The district court … could not show that it took into account the special circumstances that enabled Munchel and Eisenhart to threaten the peaceful transfer of power on January 6,” wrote Judge Robert Wilkins a 21 page statement. “On January 6th, the complainants had a unique opportunity to obstruct democracy, as a vote on the electoral college took place on that day and rallies and protests were planned at the same time.”
“With Munchel and Eisenhart not destroying property or engaging in violence, the group’s presence was critical to their ability to impede voting and endanger the community. Without them, Munchel and Eisenhart – two people who did not engage in violence and were not involved in planning or coordinating the activities – would apparently hardly have been a threat, “added Wilkins.
The majority of the appeals court did not specifically order the release of Eisenhart and Munchel, who featured in widespread images of the Capitol takeover as he vaulted seats in the Senate Gallery with tactical gear and tie shackles.
Wilkins and Judith Rogers – the two Democratic nominees on the three-person jury – stopped ordering the release of Munchel and Eisenhart, but the appellate judges made it clear that they believed U.S. District Court judge Beryl Howell recognized the ongoing threat of the Couple had exaggerated.
The other judge of the D.C. Circuit in those cases, Trump-appointed Gregory Katsas, said he overturned Howell’s decision and instructed them to conditionally release the couple.
“While my colleagues are being held in custody for an overhaul, I would immediately undo it,” wrote Katsas in partial contradiction.
Katsas noted that both defendants had made provocative statements about their willingness to sacrifice for their cause, but he dismissed it as a fair conversation. “The actual behavior of the defendants contradicted their rhetorical bravery. During the chaos of the Capitol uprising, Munchel and Eisenhart had ample opportunity to fight, but none of them did, ”Katsas wrote.
Katsas also said he was in doubt that they were a serious threat. “The transition has come and gone, and that threat is long gone. Before the district court, the government warned of an impending protest, which was scheduled for March 4th. This protest never materialized, however, and the government did not provide any evidence that Munchel and Eisenhart were involved in the planning prior to their arrest, ”Katsas wrote.
All appeals court judges said the January 6 attack on the Capitol was severe and those who committed violence deserve to be treated as a threat. But they said Munchel and Eisenhart seemed to be in a different category, even though Munchel had a taser on his hip when he entered the Senate Chamber.
“In our view, those who actually attacked police officers and broke windows, doors and barricades, and those who supported, conspired, planned or coordinated such actions are in a different category of danger than those who fueled the violence or entered the Capitol after others clear the way, “wrote Wilkins.
Friday’s appeals court opinion also includes criticism of the delay in Munchel’s and Eisenhart’s case, noting that a judge in Tennessee left three weeks without a hearing after ordering the couple’s release from home custody Custody was entered as prosecutors and Howell requested another hearing.
POLITICO reported similar delays in other cases as of Jan. 6, with several defendants taking a month or more to reach Washington after making their first appearances in other parts of the country. Some of the delays were due to Covid-19 precautions, but in at least some cases the Marshals Service or other prison guards lost orders to move defendants to DC.
Wilkins described the delay with Munchel and Eisenhart as “worrying” and suggested that it contradicted a requirement of federal law to resolve detention problems “promptly”.