These veterans swore to defend the Constitution; now they’re facing jail time for the US Capitol riot

By Marshall Cohen and Hannah Rabinowitz, CNN

More than 70 current and former members of the US military, who all swore an oath to defend the Constitution, are now facing criminal charges and special attention from prosecutors for attacking their own democracy by storming the US Capitol on January 6.

For these defendants, many with decorated combat records and multiple overseas deployments, their military service has become a double-edged sword in their legal cases. The Justice Department has argued that rioters’ veteran status is an aggravating factor, and some judges have held veterans to a higher standard while considering whether to send them to jail, either as punishment for their crimes or while their cases play out.

Retired Sgt. Jeffrey McKellop, a 23-year Army veteran who served in Iraq and Afghanistan, was charged with assaulting police with a flagpole. He pleaded not guilty but has been in jail since March. District Judge Carl Nichols said his military service shows “he should have known better” and ruled against releasing him before trial.

“I really credit his military service. It’s really remarkable, and I thank him for it,” Nichols said at a recent detention hearing. “But it suggests that he should have known better. I am more concerned about his conduct that day than I might have been if it was some random person.”

But other veterans who were charged with violent crimes were released from jail shortly after their arrest. And some veterans have successfully pushed for leniency, because of their valiant battlefield experiences, or due to injuries they received while serving their country, including PTSD.

For instance, the chief judge of DC’s federal court balked when prosecutors requested a monthlong jail term for a retired lieutenant colonel who pleaded to a nonviolent misdemeanor.

“It surprises me that the government is holding that service — that, I think, most Americans would have enormous respect for — against this man,” Chief Judge Beryl Howell said about Leonard Gruppo, before sentencing him to three months of house arrest, probation and a $3,000 fine.

More than 650 people have been charged by the Justice Department in the January 6 insurrection, and about 1 in 10 defendants served in the military, according to CNN’s analysis of Pentagon records and court filings. A quarter of the veterans facing charges have alleged ties to far-right extremist groups, like the Oath Keepers and the Proud Boys, which recruit ex-military and retired police officers.

At a hearing for alleged Oath Keeper Joshua James, Judge Amit Mehta said it was “mystifying” that James had played “an active role” in the assault, given the Purple Heart he had earned in Iraq. James has pleaded not guilty to conspiracy and other felony charges, and was released before trial.

“It really does cut against what I think you stand for, and what this country is all about,” Mehta said.

Veterans behind bars

It hasn’t always worked, but federal prosecutors have repeatedly argued in court that the veteran-rioters deserve harsher treatment. After all, they swore an oath to defend the Constitution when they joined the military, but they aided an attempted coup on January 6.

McKellop’s defense attorney acknowledged that he “probably should have known better” because of his experience in the Special Forces and later as a contractor for the CIA. Nichols, the judge, said he was afraid McKellop might fight with police again if released.

“One would think that someone who respects the rule of law wouldn’t swing a flag with a tip at police officers, and cut them, and then throw it like a spear,” said Nichols, an appointee of former President Donald Trump.

Magistrate Judge Michael Harvey reached a similar conclusion about retired Spc. Robert Morss, who served in Afghanistan with the Army Rangers. Videos released by the Justice Department show Morss taking on an impromptu leadership role with his fellow rioters, coordinating their movements and passing back stolen police shields that they could use to protect themselves.

At a detention hearing in July, Harvey ruled that Morss should stay in jail before trial, in part because he was “willing to use his training or experience to organize with the rioters” to subvert democracy, “thereby making their actions more effective, more forceful and more violent.” Morss has pleaded not guilty.

Other prominent veterans facing charges have been behind bars essentially all year. They include former Pvt. Jessica Watkins, the Ohio bar owner who is charged in the Oath Keepers conspiracy case, and Sgt. Timothy Hale-Cusanelli, whose colleagues said he was an outspoken Nazi sympathizer at the Navy base where he worked. Both have pleaded not guilty.

‘I can’t bring myself to do that’

Plenty of other veterans found more receptive audiences when asking judges to cut them a break. Many factors play a role in detention decisions, including the history and characteristics of the defendant, which gave veterans a platform to tout their heroic service for their country.

One federal judge released former Marine Sgt. Michael Foy from jail in part because of his “history of respect for and compliance with authority,” though she added that Foy had violated his oath to the Constitution.

Gruppo, the retired lieutenant colonel, spent time in four war zones as a decorated medical officer. He was a liaison to Gen. Norman Schwarzkopf during the Gulf War and saw front-line combat in the Iraq War, trying to save wounded troops during the 2007 surge. At his sentencing hearing, prosecutors hit a wall when they tried to use his 27-year military career against him.

“I just don’t view his military service that way. I can’t bring myself to do that,” said Howell, the chief judge in DC’s federal court, a self-described “Army brat” who was born on a military base.

She praised Gruppo’s service as “heroic” and said she was “not sure most of the (prosecutors) sitting at the government’s table would ever be able to survive” what he had gone through overseas.

At every step of the way, defense attorneys have put any disabilities front and center in their legal arguments.

A judge kept former Lance Cpl. Alex Harkrider out of jail because, in large part, he said he was uncomfortable putting someone with PTSD behind bars without his service dog. And the Justice Department didn’t request detention for Mark Leffingwell — whose lawyer said he “got blown up in Iraq” while in the National Guard — even though he punched a police officer on January 6.

Marine Corps Maj. Christopher Warnagiris, who was on active duty and stationed in Virginia on January 6, was indicted on felony charges for allegedly shoving a police officer while trying to hold open the Capitol doors. He pleaded not guilty, and prosecutors didn’t object to his release.

‘I broke that oath,’ veteran says

There’s also a split among the veterans themselves, as they grapple with the fallout from January 6. Some have publicly slammed investigators and peddled conspiracy theories, while others have offered emotional apologies and owned up to their roles in the insurrection.

As the Justice Department moves to resolve the hundreds of federal cases, more than a dozen veterans have pleaded guilty to charges connected to the insurrection, according to CNN’s tally. Some veterans have used plea and sentencing hearings to apologize and take responsibility.

At Gruppo’s sentencing, he said it was “a huge mistake” to go to the Capitol. He apologized to the police, congressional leaders, “both presidents” and his family, adding, “I am ashamed.”

Thomas Vinson struck a similar tone: “I signed up for the Air Force to take care of and defend this country,” he said. “I took that oath to the Constitution. and I know I broke that oath that day by entering that building and participating in the events of January 6. It’s a blemish that’s going to be on myself, my family, for the rest of my life, and the country, and into the history books.”

When Jonathan Sanders, a decorated former master sergeant in the Air Force, was sentenced to a misdemeanor last week, he told the judge that he “failed” his extensive military training.

“That was a personal failure on my part. I wasn’t coerced, I wasn’t tricked, I wasn’t pushed,” he said. “…That failure on my part is uncharacteristic. I know that my family, my friends, the men and women I served with and especially the men and women who trained me expected better.”

Both men got probation, even though their convictions could’ve led to six-month jail terms.

Conspiracies and delusions

Other rioters have flocked to right-wing outlets to falsely claim that the Justice Department is unfairly targeting service members because they support Trump. These claims have helped some defendants capture online fandom and sympathy from conservatives.

Micajah Jackson, a former Marine with ties to the Proud Boys, was a featured speaker at a “Justice for J6” rally in Phoenix, CNN reported. He pushed the false-flag theory that the FBI had colluded with police and left-wing groups to orchestrate the attack on the Capitol.

In an October interview with Fox News host Tucker Carlson, Navy veteran Thomas Caldwell said the Justice Department “made me the poster boy” of the Oath Keepers and that the case against him was “total claptrap.” His wife, Sharon Caldwell, said he has “given everything for this country that he loves,” and solicited donations for a legal defense fund.

Similarly, former Drug Enforcement Administration agent Mark Ibrahim went on Fox News and claimed he had gone to the Capitol because a “friend I served in Iraq with” in the Army had asked him to help film the riot “so those criminals could face justice.” He also claimed he had been fired from the DEA for attending the pro-Trump rally, and his story instantly went viral on conservative social media.

But prosecutors said Ibrahim’s claims on Fox News were a fabrication — and that he had repeated his story to the FBI, leading to a criminal charge of lying to investigators. He pleaded not guilty.

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