WASHINGTON - Jury selection started Monday for the trial of a purported Texas recruiter for the right-wing, anti-government Three Percenters charged in the Jan. 6, 2021, attack on the Capitol. Guy Wesley Reffitt, 49, of Wylie, Texas, is the first Capitol breach defendant to go to trial in a case with high stakes for him, federal authorities and roughly 275 other people similarly charged with storming Congress the day it certified President Biden’s 2020 election victory.
In a courtroom confrontation as long-awaited as it promises to be dramatic, Reffitt faces five felony counts to which he has pleaded not guilty. They include obstructing an official proceeding of Congress; trespassing at the Capitol while carrying a holstered semiautomatic handgun; interfering with police in a riot; and witness tampering after prosecutors say he threatened his teenage children not to turn him in to authorities.
“Traitors get shot,” Reffitt is accused of telling his 18-year-old son on a recorded conversation days after the husband and father of three returned from Washington.
Reffitt was hit by rubber bullets and chemical spray in confrontations with police that helped others break in during rioting that injured scores of police officers and forced the evacuation of lawmakers, according to prosecutors. He is also the only Capitol defendant accused of violating a controversial federal law that makes it a crime to transport firearms for unlawful use in a riot, including an AR-15 rifle and a .40-caliber Smith & Wesson pistol.
For U.S. authorities, the trial marks a milestone that carries with it political and legal risks, as well as potential rewards. For the first time, a defendant will get to confront in open court a portion of the mountain of video evidence, online communications data and police testimony the government has amassed against roughly 750 federally charged individuals. A judge and jury in Washington also will weigh prosecutors’ novel application of rarely used criminal statutes to prosecute the first violent incursion of the Capitol by U.S. citizens.
A swift guilty verdict and stiff sentence could motivate many of the roughly 375 remaining Jan. 6 defendants who face felony charges to accept plea deals, legal analysts said.
But prosecutors face a different fight in the court of public opinion. Justice Department allegations of Reffitt’s involvement in a self-styled, right-wing militia movement, opposition to federal firearm laws, adoption of revolutionary rhetoric and armed presence in a riotous crowd of Donald Trump supporters could require prosecutors to navigate divisive topics to explain what separates political violence from legitimate free speech, association and gun rights.
Handled clumsily, Reffitt’s prosecution could worsen distrust of the federal government and the radicalization of U.S. politics - deepening the country’s fault lines just as they tore apart the defendant’s own family, experts said.
Michael Sherwin, who led the Capitol breach prosecution as acting U.S. attorney for D.C. before leaving the Justice Department in March, said the first trials are important for two reasons: to show that the government can move swiftly and that the trials can be conducted fairly and impartially in the nation’s capital.
“While I’m confident these objectives can be met, it is critical to divorce politics from these cases, and DOJ needs to be mindful of that peril to show the public that each defendant is on trial for their own individual conduct and not the rhetoric of others,” Sherwin said.
Who is Guy Reffitt, and what is he accused of?
For Reffitt - who demanded to face trial against his attorney’s advice to wait to review more evidence - either conviction or acquittal will free him from pretrial detention at the D.C. jail, where he has complained of harsh conditions. Fellow inmates, his son and his own published letters suggest his views have grown more radical while behind bars.
“There was no insurrection, no conspiracy, no sinister plan and no reason to think otherwise,” Reffitt wrote in a letter from jail published last May by ProPublica. On Thursday, in a letter posted on Telegram, Reffitt wrote that he was “prepared to stare down the barrel of tyranny and receive the bullet of freedom,” Washington CBS affiliate WUSA 9 reported.
Reffitt is among an estimated 2,000 individuals who authorities say breached police barricades and laid siege to the Capitol after Trump urged supporters to march to Congress to overturn what he falsely called a stolen election.
In court filings, the FBI and prosecutors say Reffitt, carrying plastic flex-cuffs and wearing body armor, a blue jacket and a motorcycle helmet mounted with a camera, was captured on a Reuters news video holding his hand up at the West Front of the Capitol as a police officer sprayed him in the face. The video goes on to show Reffitt flushing his eyes with drops and a bottle of water and resting as rioters behind him wielded sticks and wooden poles, prosecutors said.
Following his arrest 13 days after the riot, a U.S. magistrate judge jailed Reffitt until trial, citing his apparent planning for armed political violence before and after Jan. 6, 2021.
“The fight has only just begun,” he allegedly told two recruits he met at the Capitol via encrypted chat three days later. He added that he had created a new security business to circumvent gun laws and obtain high-grade weapons and ammunition available to law enforcement.
Four days after that, after a leader of the Texas Three Percenters was questioned by law enforcement, Reffitt allegedly directed other members to destroy evidence and be ready for future violence, and he kept an unregistered silencer in a safe, prosecutors have said.
“We had thousands of weapons and fired no rounds yet showed numbers. The next time we will not be so cordial,” Reffitt wrote others, prosecutors said.
Reffitt told FBI agents in defense that he brought a disassembled pistol to D.C. and that he attended the Capitol on Jan. 6 but “did not go inside,” according to court filings. His court-appointed attorney, William Welch, said there is no evidence that Reffitt carried a loaded firearm.
“My client likes to talk. He’s got a bit of an ego. He brags,” Welch said at a bond hearing. “But sometimes words are just words. . . . There are offenses that cross the line, but it still does not mean that they are an actual threat.”
Reffitt appeared Monday in U.S. District Court in D.C. wearing a western-style tan sport coat, blue jeans, checkered dress shirt, white T-shirt, and dark hair pulled in a tight pony tail. He appeared relaxed at the defense table, partially removing his mask with a smile each time a potential juror was asked if they knew or recognized him, and periodically taking off a dark of dark-framed eye glasses. He was joined in court by his wife, older daughter and another man and woman on a bench in the gallery.
A petroleum industry rig manager and consultant made jobless by the 2020 pandemic shutdown, Reffitt grew angered by Black Lives Matter racial justice protests, which his children supported, his family has said. He discovered the Three Percenters, a decentralized militia extremist movement named in 2008 after the myth that just 3 percent of the population fought the British in the American Revolution and founded on the idea that only armed “patriots” can protect Americans from the tyranny of big government, including restrictive gun laws, pandemic shutdowns and racial justice protests.
Reffitt vetted new members and gathered “intel” on BLM activists for the Texas Three Percenters and mobilized at Trump’s call after the election, according to court filings.
When Trump invited supporters in December to a “wild” rally in Washington on Jan. 6, Reffitt’s son warned the FBI that Reffitt was “going to do some serious damage” to federal lawmakers. On the drive there, Reffitt talked about “dragging those people out of the Capitol by their ankles” and installing a new government, the FBI said.
What will the trial look like?
Reffitt’s trial is the highest-profile to be held in Washington in two years. It will be held with pandemic safeguards such as plexiglass partitions; jurors seated six feet apart in what is normally the public gallery; the masking of participants; and the public and media members allowed to observe by video feed from other rooms. Like most Jan. 6 defendants at the D.C. jail, Reffitt has declined coronavirus vaccination. His lawyer said he has been infected.
Selecting 12 jurors and four alternates will take at least a day, after defense lawyers have claimed for months that their Jan. 6 clients cannot receive a fair trial in the overwhelmingly Democratic capital.
Assistant U.S. Attorneys Jeffrey Nestler and Risa Berkower in court filings have said the government will set the stage for jurors using a half-hour video montage of the riot as it progressed. They will also include at least 40 minutes of surveillance video of Reffitt, police, rioters and Vice President Mike Pence and 31 minutes of panoramic video recorded by Reffitt’s helmet camera.
Three police officers will testify about their alleged confrontation with Reffitt and others using rubber bullets and pepper ball projectiles. Prosecutors also plan to call a fellow Texas militia member who they say traveled to Washington and back with Reffitt.
Defendants and their attorneys will be gauging whether the Jan. 6 attack’s partisan dimension scrambles usual handicapping for whether clients should go to trial. Will liberal District jurors who are usually sympathetic to defendants’ arguments grow more skeptical, along with defense-friendly Democratic-appointed judges? Will pro-prosecution, law-and-order Republican appointees become less open to government arguments?
Most critically, the U.S. attorney’s office could fail to prove its case to jurors. Federal prosecutors in D.C. abandoned charges against more than 200 protesters detained in mass arrests the day of Trump’s presidential inauguration in January 2017 in downtown Washington, after the government struggled in initial trials to tie individuals to specific damages or acts of vandalism as charged, resulting in acquittals.
It is unclear whether Reffitt’s defense will cite his political views or reasons for going to the Capitol. It’s also unclear if he will appeal to jurors’ sympathy by raising the shattering impact of Jan. 6 on his family and of the pandemic on his livelihood.
If Reffitt casts himself as a persecuted “political prisoner” and is convicted, “I would expect other guilty pleas to start happening quickly, because it’s the true believers” like him who have passed on plea deals to date, said Shanlon Wu, a former D.C. federal prosecutor.
Meanwhile the prosecution may have to contend with unrealistic juror expectations that the sheer quantity of video available will reveal a “smoking gun.” Some experts warn the government may have overreached or overcharged individuals in their pursuit of leverage in plea negotiations, possibly jeopardizing the Justice Department’s credibility if jurors balk at whether a grainy image of a shiny object is really a handgun as Reffitt allegedly claimed to his family, say, or if a hotheaded father would truly threaten to harm his children.
But charging an array of offenses enables prosecutors to bring in evidence painting a broader picture of a defendant’s actions. Many Jan. 6 felony cases charge such an array of illegal activities that an acquittal on one count “doesn’t indicate a domino effect,” Wu said.
“The government has a margin of error,” Wu said, “The test will be sentences and penalties, not necessarily clean sweeps.”
If convicted, Reffitt could face years in prison depending on the count, with charges against him punishable by a maximum of five to 20 years behind bars.
Still, the emotional heart of the trial may be the appearances of Reffitt’s family as witnesses.
After observing that wrenching dynamic in tear-filled testimony by Reffitt’s wife and then 16-year-old daughter in a bond hearing last March, U.S. Magistrate Judge Zia M. Faruqui concluded, “People can have different political views, and we still have to deal with each other as family, and frankly, we are an American family. And my heart is broken. I see your family suffering, I see American families suffering.”
But Faruqui denied bond, saying Reffitt came to the Capitol “armed and ready for battle” and left it encouraging others to destroy evidence and join an anti-government group, saying he could circumvent firearms laws.
“My concern is that it takes one person to bring Mr. Reffitt into a frenzy or a concern, and that will lead him to making a bad decision,” Faruqui said.