On Monday, Couy Griffin, an elected county official in New Mexico and leader of Cowboys for Trump seen in video footage scaling a barrier at the U.S. Capitol on Jan. 6, became the second person to stand trial for crimes associated with the violent mob attack last year.
Griffin argues he was not part of that violence and to beat his case—two misdemeanor charges including entering a restricted area and disorderly conduct—he has placed nearly all of his bets on a tenuous argument that he was not in a restricted area if former Vice President Mike Pence, amid the chaos, had already been rushed away by the time he arrived.
To vindicate himself, Griffin has pressed the government for evidence of Pence’s whereabouts including photos of the then-vice president in a secure location with Secret Service agents.
But federal prosecutors have for weeks emphasized that Pence was at the Capitol to certify the election regardless of the exact time Griffin was on-site and seen, they say, breaching barricades and delivering remarks or leading prayers via bullhorn as a swelling mob tangled with police around him.
The 48-year-old Griffin has elected to have a bench trial, waiving his right to a jury which means he has put his fate solely into the hands of U.S. District Judge Trevor McFadden, a Trump appointee in Washington, D.C.
Before the trial opening, McFadden gave Griffin at least one thing he’s been after and ruled in his favor when finding that Griffin was entitled to open a line of questioning to a Secret Service agent over Pence’s location.
Justice Department prosecutors have recoiled at related asks in the past, citing concerns over national security if images or surveillance of Pence from the day were exposed. The footage, prosecutors have insisted, has no exculpatory value to Griffin one way or another.
But McFadden said questioning Pence’s whereabouts would only help Griffin “test the veracity” of the government’s charges against him.
[Related: Questions loom over photos of Mike Pence from Jan. 6]
Ultimately before trial, according to BuzzFeed, Judge McFadden did not force the government to hand over closed-circuit footage from Jan. 6. since it is now in the U.S. Capitol Police Board’s possession.
Other recordings of Griffin from the day, including some shot by a Cowboys for Trump videographer Matthew Struck, were admitted by the judge though Griffin’s defense balked about the timing of their admission.
Struck has agreed to testify against Griffin in exchange for immunity and has provided prosecutors with up to 78 different recordings.
During trial Monday, prosecutors played footage of Griffin on a makeshift ramp heading toward the Capitol. At times he is heard in the footage saying that what was unfolding around him was a peaceful assembly, BuzzFeed reported.
But that might not last, Griffin was heard saying, if laws weren’t followed.
When asked by defense, however, if Struck believed Griffin intended to be violent or confront law enforcement, Struck said “no.”
According to Business Insider, when Struck was asked whether he or Griffin ever discussed whether they thought it might be “inappropriate” to enter the Capitol, Struck said he couldn’t recall.
“I don’t think we discussed that,” Struck said.
The defense has sought to push back against the prosecution’s assertions over Griffin’s intent on Jan. 6 and specifically, how it relates to the trespass charge. Defense attorney Nicholas Smith argued Griffin believed Pence had already certified the election by the time Griffin was on the scene.
But according to The Washington Post, at a county commission meeting on week after the attack, Griffin was recorded on a public YouTube stream saying that he knew Pence had already certified a fraudulent election before walking over restricted areas into the Capitol.
In that same stream, The Washington Post notes:
“Griffin also acknowledged that the crowd pushed through fencing securing the inauguration area and that he planned to drive to Washington the next day to protest Biden’s inauguration, claiming the constitutional right to keep his “.357 Henry big boy rifle” and single action revolver in his car.”
Though Smith worked to convince McFadden that Griffin was exerting a “calming” influence on the crowd with his rhetoric, prosecutors say the footage told a different story.
Griffin could be heard whipping the crowd into a frenzy, they argued, including when he remarked: “People are ready for fair and legal elections or this is what you’re going to get and you’re going to get more of it.”
Later Monday, prosecutors will call other witnesses forward including an inspector for the U.S. Capitol Police John Erickson as well as an inspector from the Secret Service.
Erickson will offer testimony about the Capitol layout and provide details that relevant to Judge McFadden’s understanding of when and where Griffin was at the same time Pence.
