Carl Nichols, a federal judge appointed by former President Donald Trump, has declined further examination of a charge raised by an accused Capitol rioter alleging that federal officials should also arrest racial justice protesters from Portland, Oregon for committing similar crimes against the government.
The accused rioter, Garret Miller, claimed that he was the victim of "selective prosecution." As proof, Miller pointed to the Department of Justice's decision not to issue mass prosecutions against Black Lives Matter (BLM) and anti-fascist (Antifa) rioters involved in demonstrations in Portland, Oregon during summer 2020.
Miller asked the court to compel discovery and grant an evidentiary hearing on his claim. In other words, he wanted additional time to explore his claim and then hold a court hearing to lay out his case of "selective prosecution."
However, Nichols denied Miller's request in a December 21 decision.
"There are obvious differences between those, like Miller, who stormed the
Capitol on January 6, 2021, and those who rioted in the streets of Portland in the summer of 2020," Nichols wrote in his decision.
"The Portland rioters' conduct, while obviously serious, did not target a proceeding prescribed by the Constitution and established to ensure a peaceful transition of power," the judge added. "Nor did the Portland rioters, unlike those who assailed America's Capitol in 2021, make it past the buildings' outer defenses."
Furthermore, Nichols said that Miller had failed to point to any Portland case that was similar to his own.
Miller also claimed that the administration of President Joe Biden had chosen to selectively prosecute him for his conservative political beliefs while not prosecuting the BLM and Antifa protesters. However, Nichols said that Miller hadn't provided any evidence for his claim beyond "anecdotal evidence."
"That the government allegedly dismissed cases against some (but not all) Portland rioters, or offered others (but not all) favorable plea deals, does not without more show the federal government is pursuing its claims against Miller and others like him because of a difference in politics," Nichols wrote.
Nichols noted that part of the reason that the DOJ prosecuted more rioters is that the January 6 attack happened in broad daylight. Also, many of the riot's alleged crimes were captured on video, taken by law enforcement officers and the rioters themselves. In Portland, much of the illegal activity occurred at night with substantially less video evidence.
Miller faces five criminal charges, including making threats to injure the person of another; knowingly entering or remaining in any restricted building or grounds without lawful authority; willfully and knowingly parading, demonstration or picketing in any of the Capitol buildings; and obstructing, influencing or impeding any official proceeding.
One of Miller's charges involved a threat in which he said that someone should assassinate Democratic New York Representative Alexandria Ocasio-Cortez. He also allegedly threatened to hunt down and hang the police officer who shot Ashli Babbitt, one of the rioters who was among the five individuals who died during the insurrection.
In his defense, Miller claimed that his actions at the capitol were influenced by the baseless election fraud claims of former President Donald Trump.
"I want to publicly apologize to Congresswoman Ocasio-Cortez and the Capitol police officers," Miller told the court in January. "I have always supported law enforcement and I am ashamed by my comments."
