And the case is being handled by the office of interim U.S. Attorney Ed Martin, the Trump ally who once represented Jan. 6 defendants and described the day as “Mardi Gras in D.C.” On taking office, Martin summarily demoted veteran prosecutors who pursued Jan. 6 cases, part of a controversial record that this week has suddenly put his nomination in jeopardy.
I spoke to a half-dozen lawyers who have worked both sides of protest arrests and they all said the legacy of Jan. 6 is likely to shape future proceedings, either in court or in the minds of jurors. The defendant’s own attorney, Robert Haferd, signaled the strategy when he said in an interview: “Why is this harmless, conscientious, respectful, nonviolent, organized demonstration being prosecuted seeking a conviction when, on the other hand, other violent, disgraceful mob-style vigilantism is being pardoned?”
Indeed, when marauding rioters get off scot free, it has a way of changing the culture for everyone.
The specifics of the case are laughably mild: According to charging documents, a longtime activist named Adam Eidinger was among a group that went to the front steps of the National Archives on Jan. 10, climbed ladders to the top of its Corinthian columns and raised a 40-foot banner urging then-President Joe Biden to recognize the Equal Rights Amendment.
After police arrived, six demonstrators were arrested for unlawful entry, similar to the charge that faced 95 percent of Jan. 6 participants. The arrests happened without incident; the activists never went inside the building. “I followed all orders” from law enforcement, Eidinger told me. There were no tasers, bear-spray canisters or purloined metal barriers involved.
In a Washington still haunted by images of a frenzied pro-Trump mob beating up cops and trashing the Capitol, this isn’t exactly the stuff of nightmares. In short order, the offending banner was gone, the original one was back and there was no indication that anything had happened. If Jan. 6 was Mardi Gras, the Archives incident was a sleepy Sunday morning in Lent.
And yet Eidinger, unlike the pardoned mob that stormed the Capitol, still faces the possibility of jail time for this much more sedate stunt just a few blocks away.
In February, Martin’s office let the other arrestees take deferred-prosecution deals that should lead to dropped charges, a common outcome for arrests at demonstrations. Eidinger, with a record of left-wing protests and civil-disobedience arrests, didn’t get the deal. He goes to trial in October.
“It doesn’t seem fair on multiple levels,” Eidinger told me. “I’m a peaceful demonstrator, I haven’t been violent ever, and I wasn’t even the one hanging the banner. Just because you’re in the presence of a demonstration doesn’t mean you’re criminally liable for what others are doing. I find it ironic that the guy who made the same argument on behalf of so many people is now pursuing the case against me.”
The U.S. Attorney’s office declined comment about Eidinger’s case and whether Martin’s Jan. 6 record could imperil a prosecution.
The office may have bigger concerns at the moment: Martin, who is serving in an interim capacity, must be confirmed by the Senate before May 20. His prospects have suddenly become iffy, with Democrats demanding a hearing in order to ask about an array of controversies that have dogged the prosecutor’s brief tenure. Though Trump on Monday made a lengthy Truth Social post lobbying for Martin, North Carolina Republican Sen. Thom Tillis on Tuesday announced that he would not vote to confirm the nominee, citing Jan 6.
In fact, the question of how the Jan. 6 pardons affect criminal prosecutions is going to be with us for a while, and not just in cases involving people like Eidinger, a relentless activist who over the years has thrown himself into issues ranging from decriminalizing marijuana to blocking public stadium funding.
Since the dawn of the republic, people have made their way to Washington to protest. And some portion of those people have gotten themselves arrested. The charges often get dropped, but for those who actually face trial, the pardons are going to be an awfully useful rhetorical device.
“There are those in higher levels of law enforcement authority who are celebrating and countenancing and supporting a violent attack on the Capitol, and have no problem with that, and yet wish to bring the entire force of the state to bear on nonviolent protesters,” said Mara Verheyden-Hilliard, a longtime lawyer for free-speech causes and activists in Washington. “I think people would use it to show the nature of the prosecution, that it’s an ideological prosecution.”
Alyse Adamson, a former D.C. prosecutor, said she expected that prosecutors would try to keep Jan. 6 from coming up in a trial, raising objections that invoking the assault could inflame the jury’s emotions. But she said that defense attorneys would still lean heavily on it in pretrial motions, perhaps by noting the administration’s warm treatment of the rioters. “I would say, ‘Your honor … why is my client not being treated the same?’”
Even if a judge puts the kibosh on courtroom invocations of the insurrection, it’s pretty hard to erase memories of that day. A savvy lawyer can conjure them without overtly discussing Trump’s pardons or the U.S. Attorney’s praise of Jan. 6. “There are ways to present this case that will allow the jury to see those parallels,” Adamson said. “They can say, ‘What my client did is nonviolent,’ without even having to mention Ed Martin. If a skillful defense attorney finds a way to powerfully contextualize what his guy did, it could invite jury nullification.”
As a veteran of the office Martin now runs, Adamson views jury nullification as a terrible outcome. But it may be an inevitable byproduct of the administration’s Jan 6 actions. To use a phrase once favored by law-and-order pols, we’ve defined deviancy down. That’ll make it hard to bust others for anything similar. And it’ll make it especially hard to convict them for something so much less frightening, like helping hang an ERA banner at the Archives.
As for Eidinger, he said he would have taken the deferred-prosecution deal given to his compatriots. And he said he’s not looking forward to the six months of jail time he could face in the event that he’s convicted by a jury.
But he did say he was happy with how the protest turned out. Soon afterward, Biden announced that he agreed that the ERA had indeed been legitimately ratified by enough states to become the 28th Amendment. Of course, a couple days after that, the Trump administration was in office, and it doesn’t agree with the interpretation. The matter will likely be settled by a court.
Ironically, Martin himself got his political start as a close aide to conservative activist Phyllis Schlafly, who rose to fame in the 1970s as the face of opposition to the very same amendment.
“I have never been involved in a demonstration that had such a response from the White House,” Eidinger said. “It’s taken over 100 years to get this amendment in. We’re part of the story now.”
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-- By James W. Thomas
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