When prosecutors for the Department of Justice opened their case against Texas “Three Percenter” Guy Wesley Reffitt this week, they essentially put their entire January 6 strategy on trial. So much is riding on this first case that Attorney General Merrick Garland and the entire Justice Department will be holding their collective breaths until the verdict is handed down.
Reffitt, 49, faces felony counts of civil disorder, seeking to obstruct the Electoral College count, carrying a firearm into a restricted area, and obstruction of justice. The government has a great deal of compelling evidence against him, including incriminating videos from Texas and DC, as well as cell phone GPS data. The government also has a couple of aces up its sleeves.
Among January 6 defendants, Reffitt holds the distinction of having been ratted out by his children. His son Jackson contacted the FBI before January 6 to report on his extremism and took several audio recordings on his cell phone after the attack. Most chillingly, Reffitt threatened to shoot his children if they cooperated with the government, reportedly telling his children that “traitors get shot” if they turned him in. They will testify against him at trial, as will a cooperator who agreed to testify in exchange for immunity.
The government appears to be playing with a heavily stacked deck, but even the best of players can have a bad game. Could that happen here? One can never rule out “stealth jurors,” who are jurors motivated by a hidden agenda and take great pains to avoid detection. Should such a juror be empaneled, there is a high likelihood of a hung jury, which would allow Reffitt to walk away.
But on paper, this case should be a slam-dunk. It is hard to fathom a mainstream jury that would not be shocked, appalled, and sickened by the government’s case against Reffitt. And this is exactly what the DOJ is counting on. Federal prosecutors are expert strategists. They operate proactively, lining cases up that will ultimately lead them to the “head of the snake.” If they can get lower-level, frontline insurrectionists to cooperate, they will have a much better shot at the masterminds. Militia leaders may not have been boots on the ground on January 6, but they were the heads of the January 6 snake.
The DOJ’s best-case scenario is a chastened Reffitt who agrees to cooperate post-conviction, helping bring down other militia leaders who face conspiracy and sedition charges. Prison time can be a remarkable motivator, and Reffit’s possible conviction and cooperation would bode well for convictions in other high-profile cases. If successful, his case would establish the government’s blueprint for the prosecution of the scores of militia defendants queued up behind him.
If Reffitt is convicted, these other defendants may think twice about going to trial. Yes, they have a constitutional right to a jury trial, but if the district court judge imposes a “trial tax” – along with a harsher penalty – on Reffitt because he committed perjury or failed to accept responsibility for his acts, the next defendants could decide to plead.
But I wouldn’t count on it. Along with hundreds of other Capitol insurrectionists, Reffitt is a “true believer,” someone who guzzled far-right conspiracy theories perpetuated by Trump and his sycophants. Most of the rioters have no criminal history. Many of them are former military or law enforcement. But they are irrational actors. They believe so strongly in their cause that they would “stare down the barrel of tyranny,” as Reffitt has famously stated, and take a bullet for “freedom.” These defendants are a prosecutor’s worst nightmare because they cannot comprehend that they did anything wrong. They want their day in court.
Anything other than a conviction in Reffit’s case would be disastrous for the DOJ. Given the volume of evidence supporting the government’s case, an acquittal could be a career-ender. A hung jury would be no less devastating from a practical standpoint. Either outcome would embolden other defendants to push their cases forward, and this could derail the entire DOJ machine.
The DOJ, federal prosecutors, and federal district courts are not set up to handle large volumes of cases in the way that state prosecutors and courts are. If they are required to deal with dozens or hundreds of cases that would otherwise have settled before going to trial, it will result in a hugely inefficient process.
And it is worth noting that it will be very bad politically, as these cases will likely drag on for years.
For the sake of the country and its vaunted system of justice, the first Capitol rioter to face the music must hear a resounding chorus of “guilty as charged.”
Former U.S. Assistant Attorney Neama Rahmani is the co-founder of West Coast Trial Lawyers in Los Angeles, which represents plaintiffs in employment and personal injury civil litigation.