A key component of the Department of Justice's prosecution of Jan. 6 defendants is whether then-Vice President Mike Pence and Kamala Harris were present at the Capitol building when it was breached by protesters.
It has already been determined that Harris was not. She was blocks away at the Democratic National Committee headquarters.
Prosecutors, have introduced evidence from Secret Service and Capitol Police witnesses to suggest that Pence never left the Capitol complex when the protesters entered. Rather, they say, he was ushered at 2:26 p.m. to a “secure area” within the complex and remained there until the protesters were ushered out and Congress resumed its meeting that evening.
One Jan. 6 defendant, Couy Griffin, the leader of Cowboys for Trump, is contending in his defense that Pence’s evacuation to a secure location took him off of Capitol grounds — and outside a Secret Service perimeter established to protect Pence while lawmakers counted Electoral College votes.
Prosecutors have charged Griffin with breaching a Secret Service-protected zone.
Griffin’s case "has become an important test for the Justice Department, with potential ramifications for hundreds of those charged with 'entering and remaining in a restricted building or grounds' on Jan. 6, a misdemeanor that carries a one-year maximum jail sentence," Politico reported on March 18.
If U.S. District Court Judge Trevor McFadden decides Pence’s precise location matters, "it could echo across many of the nearly 800 cases" stemming from the events of Jan. 6, the Politico report said.
McFadden, an appointee of President Donald Trump, had previously ordered the DOJ to have a Secret Service witness prepared to testify about Pence’s location throughout the Jan. 6 protest. The judge decided to permit Griffin to cross-examine that witness — and ask specifically about where Pence was taken during the Capitol breach.
“Whether the Vice President was present on the Capitol grounds is … an essential question in Griffin’s prosecution,” McFadden wrote in his Friday order, suggesting Griffin has the right to challenge the Secret Service evidence used against him. “[T]o mount a meaningful defense Griffin must be allowed to test the veracity of the Government’s contention that Vice President Pence was on the Capitol grounds during the relevant period.”
Griffin will not face a jury. He elected to have a bench trial, which means McFadden alone will weigh the evidence of his guilt or innocence.
Griffin’s team is likely to raise passages from ABC reporter Jonathan Karl’s book “Betrayal,” which described Pence’s evacuation to an underground loading dock.
Earlier versions of the charge against Griffin had indicated falsely that Harris — a Secret Service protectee as vice president-elect — was on Capitol Grounds during the riot.
Prosecutors have acknowledged their initial contention was erroneous, and Politico revealed that Harris was at DNC headquarters.
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