(Photo by Samuel Corum/Getty Images)
Jenny Cudd admitted to storming the Capitol on January 6. Thanks to the miracle of Facebook streaming, this isn’t really in dispute. In February, she displayed a superhuman level of chutzpah by asking the court to allow her to go on vacation while pending trial for joining a violent revolt that left five people dead. And then the court granted the request.
Respecting the maxim that if you can take an inch, you can take a few thousand miles, Cudd and her attorney are now asking Trump-appointed judge Trevor McFadden to further pad his future D.C. Circuit resume by moving the criminal proceeding to West Texas because…
The facts of this case center around Donald Trump and his supporters. The facts of this case include political statements that are favorable to Donald Trump and adverse to Democrat political interests. The evidence in this case is emotionally political in every respect. But the jury who would hear the facts in Washington D.C. is the most politically prejudiced jury in the entire country.
“Democrat political interests.” They certainly know they’re pitching to the Federalist Society choir busting out the most overused and grammatically incorrect shibboleth of the MAGA world — Democrat as an adjective. Cudd is represented by Virginia DUI lawyer Marina Medvin, an ASSLaw graduate who wrote for Newsmax wannabe Townhall.com, and she’s clearly juiced up this filing with every buzzword that would fire up a committed fellow traveler.
The response in modern Democrat culture to “white supremacists” has been uniform: termination from employment, public shaming, and “getting canceled,” a colloquial term denoting social pariah status. There is a social expectation of punishment for anyone accused of being a “white supremacist.” In Washington D.C., people have been readily “canceled” for being politically conservative and for their public support of Donald Trump.
Oh no, not canceled! For someone facing jail time, perhaps we could bring this motion back around to something approximating criminal law instead of whining that overt displays of racism aren’t as popular as they used to be. Maybe?
For example, Cleta Mitchell resigned from her D.C. law firm, Foley & Lardner, after “a massive pressure campaign in the last several days mounted by leftist groups against me, my law firm and clients,” due to Ms. Mitchell’s association with President Trump.
Leaving the partnership of an international law firm for participating in a call that raised serious questions of attempted voting official intimidation! It would seem that Cleta’s gotten off relatively easy compared to someone facing federal criminal charges. If anything, this example seems to prove that society is actually judicious about when it does and does not think behavior rises to the level of criminal sanction.
Is she gonna do it? I think she’s gonna do it. Let’s see if she goes there….
The mere accusation of “white supremacy” or “racism” is sufficient in modern society to “hang the witch,” akin to the 1600’s accusatory hysteria in Salem.22
And the footnote for the Salem Witch Trials for the chef’s kiss of bad law review note legal writing. Bravo.
It’s difficult to stress how many non-sequiturs are shoved in this filing to bait Tucker Carlson into inviting Cudd or Medvin on the show. “Democrat” and “cancel culture” for sure, but the reader is also treated to asides to “antiracism,” “white privilege,” and a cavalcade of namechecks of MSNBC personalities. There’s a truly bizarre screenshot of Dr. Jason Johnson explaining the innocuous fact that there’s a difference between civil and criminal liability seemingly thrown in just to highlight that he’s Black. You probably think I’m exaggerating, but no, the brief quotes Johnson noting that the civil system can secure monetary damages for wrongful conduct even when the criminal system cannot get a conviction, but throws in a picture to add absolutely nothing to the analysis.
The legal argument, when it finally arrives, turns on the Skilling test, a multipronged test of venue prejudice considering: “(i) the size and characteristics of the community; (ii) the nature and extent of the pretrial publicity; (iii) the proximity between publicity and the trial; and (iv) evidence of juror partiality.”
There’s a superficial case to be made that D.C. may not provide a fair trial to Cudd under this test, but that ignores the factual context of the recent fair trial jurisprudence Medvin cites herself. Timothy McVeigh blew up a building in Oklahoma killing 168 people — a devastating impact on a small community — prompting a relocation to Colorado. The other recent case she cites is United States v. Awadallah, which rejected the claim that 9/11 rendered the Southern District of New York an unfair venue. Hell, even the Skilling case that sets out the standards concluded that a venue change was unwarranted.
The whole motion boils down to “D.C. residents might have a bias against people committing crimes in D.C.” which may be true as far as it goes, but it’s not a valid basis for moving a trial.
But where you know the bravado is hitting fever pitch is when, after claiming D.C.’s predominantly “Democrat” voting record justifies a move, the filing eschews seeking a battleground venue like Wisconsin or Pennsylvania and jumps straight to the Western District of Texas, specifically the Midland-Odessa region that voted for Trump by roughly 60 points. As the Washington Post succinctly put it, she really is “saying a more Republican-friendly jury would decide her guilt or innocence more fairly.”
Guilt or innocence of charges based on an action she publicly confessed to committing.
But maybe this is crazy like a fox. If she’s arguing that the pool is biased based on negative coverage of the judge approving a pre-trial Mexican vacation, maybe this is just an effort to gin up more deserved media outrage to claim that the pool is even more biased.
Courts usually aren’t inclined to reward defendants for creating their own predicaments, but after Judge McFadden’s last foray into this matter no outcome should surprise us.
Earlier: Judge Lets Trump Rioter Go On Vacation To Mexico Despite EVERY OPPORTUNITY TO DO THE RIGHT THING
Jan. 6 Capitol defendant wants trial moved to west Texas, calls D.C. too anti-Trump, politically correct [Washington Post]
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.