If the government had had its way, Eric Munchel and his mother, Lisa Eisenhart, would already have been in jail for two years. Arrested in February 2021 for participating in the Jan. 6 riot at the Capitol, they finally are scheduled to go on trial next week in the Washington courtroom of U.S. District Court Judge Royce Lamberth.
It won’t be the first time Munchel and Eisenhart will find themselves before Lamberth. He is the judge who declared two years ago that they were far too dangerous to be allowed outside prison walls. Home confinement, enforced with ankle monitors and GPS tracking, Lamberth ruled, would not be sufficient to protect the public from the honky-tonk bartender and his traveling-nurse mother.
Their case, combined with hundreds of others in the Capitol breach, have led to an over-crowded docket, one groaning under the weight of what the Department of Justice has described as the largest criminal case in American history. And it’s only going to get more crowded. The courts may be prosecuting another 1,000 accused of crimes related to the Capitol riot.
Munchel and Eisenhart are an odd pair to be prominent players in the Capitol Hill action-dramedy. Munchel wore his iPhone as a body cam, documenting his actions. Aside from some shouting and some trespass, Eisenhart and Munchel didn’t seem to do much in the way of rioting. Mother and son entered the Capitol through an open door and strolled past police who didn’t tell them to get out. Mother and son wandered the halls of the Congress. They entered the abandoned Senate chamber where Munchel spied the body’s ceremonial gavel. “I want that f---ing gavel!” Munchel declared. But he did nothing to touch, let alone take, the Senate heirloom. The one thing Munchel did take were some white zip-ties that seemed to have been abandoned on a table.
They might be among the thousand yet to be prosecuted if it hadn’t been for a particular behavior that called attention to them and made them among the earliest targets for arrest. And that wasn’t their time spent in the Capitol, but their time spent talking to a reporter for the Sunday Times (of London). They were featured in the newspaper’s story about the fracas under the headline “Trump’s militias say they are armed and ready to defend their freedoms.” The sub-hed read, “Further violence, and even civil war, is threatened.”
The paper had a photo of Munchel leaping over a railing in the Senate chamber, a fistful of white zip-ties in his hand. Though there was no evidence that Munchel tied or assaulted anyone, the Times suggested the zip-ties showed just how dangerous he was: “These are the restraints typically used by police to detain individuals.” The Sunday Times didn’t claim to know what he was going to do with them, but also didn’t hesitate to imagine the worst: “The photograph led to speculation that the rioters were potentially planning to take hostages.”
Munchel and his mother, Eisenhart, didn’t do themselves any favors indulging in big talk and bravado. When asked by the British newspaper what they hoped to accomplish, Munchel bragged, “It was a kind of flexing of muscles. The point of getting inside the building is to show them that we can and will.”
“This country was founded on revolution,” Eisenhart declared to the reporter. “They’re going to take every legitimate means from us, and we can’t even express ourselves on the internet, we won’t even be able to speak freely, what is America for?” Eisenhart got herself worked up: “I’d rather die as a 57-year-old woman than live under oppression. I’d rather die and would rather fight.” Judge Lamberth would later call that statement “chilling,” and would use it to justify an order putting Eisenhart behind bars indefinitely while she awaited trial.
Munchel and Eisenhart left Washington the day after the riot and made their ways home – Munchel to Tennessee, Eisenhart to Georgia. With the help of the Sunday Times’ coverage and social media, it didn’t take long for them to realize they were prime targets of the massive investigation. In a gesture of cooperation, Eisenhart contacted the FBI and checked to see if police wanted her to surrender.
In February, Munchel and Eisenhart were arrested and brought before a federal magistrate judge in Nashville, Jeffery “Chip” Frensley. He was unpersuaded by the Department of Justice portrayal of mother-and-son rioters as an ongoing insurrectionist threat to the nation. It wasn’t clear to him what their motives and intent were. “The proof on these issues is inconsistent.”
The prosecutors’ intent was perfectly clear. They wanted Munchel and Eisenhart locked up indefinitely until they could be put on trial. The government argued there were no release conditions that would ensure Eisenhart and Munchel wouldn’t pose a danger to the community. Federal prosecutors insisted the two be placed in pretrial detention, which is to say, imprisoned before they were convicted. Nor would there be any limit to how long the defendants would be jailed as they waited for trial, the expectation of a speedy trial notwithstanding
Frensley was not nearly as breathless as the Justice Department’s team. The judge considered it sufficient for Munchel to wait at home for trial. The defendant would not be allowed to travel to Washington; would have to give up his guns, notwithstanding they were licensed; would be required to present himself once a week to “pre-trial services”; and would have an ankle monitor to enforce home detention.
And as for Eisenhart, the worst blot on her permanent record was a citation 20 years ago for driving with a suspended license. Frensley called for Eisenhart to be similarly confined, monitored, and surveilled at home until it was time for her trial. Frensley found that the government had failed to demonstrate either of the elements normally needed to justify holding defendants without bail. Prosecutors had proved neither that she was a threat to the community nor a flight risk.
Nor was Frensley ready to lock Munchel away. Though he had acted with “an absolute disrespect of law enforcement,” Frensley said the video from Munchel’s body cam also showed him “speaking with law enforcement in respectful ways.” The judge said he had “no reason to believe Mr. Munchel is part of an organized, collective action against the government.” In ruling that Munchel be released pending trial, Frensley concluded, “Mr. Munchel does not pose an obvious and clear danger to the safety of this community.”
The government’s lawyers warned that Munchel had become dangerously radicalized and that there was “no reason to think those views will diminish over time.” Indeed, they said, “they may get worse.”
If it seems Judge Frensley was generous in his interpretation of Munchel and Eisenhart’s behavior, by contrast, the government sought at every turn to make the worst of the defendants’ actions. The video from Munchel’s iPhone shows him shouting at other rioters, “Don’t break sh-t,” and “No vandalizing sh-t …We ain’t no goddamn Antifa, motherf—ers.” He threatened his fellow rioters that he would “break” anyone who committed acts of vandalism.
Lamberth allowed that though Munchel's threats to “break” any vandals may have been beneficial, “These were not peaceful acts.” According to Lamberth, Munchel’s willingness to threaten violence against vandals “evinces violent behavior.”
But what about those zip-ties with which Munchel and Eisenhart were going to take hostages? Prosecutors admitted, in their brief for Judge Lamberth, that neither mother nor son had brought the zip-ties. They had found them abandoned on a table in a Capitol hallway, and had picked them up.
Munchel’s actions at the Capitol riots were thoroughly documented – by his own smart phone. In his opinion remanding Munchel and Eisenhart to pretrial confinement, Lamberth allowed that the video camera footage showed there was “no evidence indicating that, while inside the Capitol, Munchel or Eisenhart vandalized any property or physically harmed any person.”
The hearing in Judge Frensley’s court was on a Friday. Prosecutors urged the judge to hold the pair over the weekend. The Department of Justice wanted time to have Frensley overruled by the Washington-based judges who had been unsparing in their treatment of accused rioters. Frensley acquiesced. Come Monday, just before Munchel and Eisenhart were to be released, the chief judge of the U.S. District Court for the District of Columbia Beryl A. Howell stayed Judge Frensley’s order that Eisenhart and Munchel be released to home confinement. The case was assigned to Judge Royce Lamberth.
He found it particularly concerning that Eisenhart had used “language of insurrection.” By citing the American revolution, U.S. attorneys argued, Eisenhart had demonstrated “the danger she poses to the community if released.” Lamberth agreed: “As a self-avowed, would-be martyr, she poses a clear danger to our republic.” He took seriously that she was prepared to die for her cause, which made her a “danger to the community.” If she’s willing to die for the MAGA revolution,” Lamberth concluded, “the consequences for disobeying release conditions are unlikely to deter her.”
The judge made the extraordinary determination that there were “no release conditions” that could “ensure that Eisenhart would not pose a danger to the community.” Or at least it would have been extraordinary before it became the norm to keep behind bars those accused of charges related to Jan. 6.
That new norm led to overcrowding at the D.C. jail, where a COVID protocol was instituted in which social distancing was indistinguishable from solitary confinement.
These new norms of hardcore pre-trial jailing also fell afoul of the bedrock principle that one is innocent until proven guilty.
A three-judge appeals court panel sprung Munchel and Eisenhart two years ago in March and sent them home to be monitored in the fashion Judge Frensley had ordered in the first place. Circuit Judge Robert Wilkins wrote the opinion overruling Lamberth’s opinion ordering the mother and son be jailed while awaiting trial. Wilkins made the case not just for avoiding pre-trial detention, but for protecting principles of justice, even those involving – perhaps especially those involving – defendants disliked by the government. Wilkins quoted a legal precedent from a case, U.S. v. Salerno, involving organized crime: “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”
In a concurring opinion, Judge Gregory Katsas assessed the threat posed by Munchel and Eisenhart: “Their misconduct was serious, but it hardly threatened to topple the Republic. Nor, for that matter, did it reveal an unmitigable propensity for future violence.
Munchel and Eisenhart will be back in Washington next week. Tuesday morning, jury selection begins. Presiding will be a judge who has already made clear his apocalyptic views of the defendants and the events they participated in.
Eric Felten is an investigative correspondent for RealClearInvestigations, reporting on government corruption. He is a former columnist for the Wall Street Journal and previously a Kennedy Fellow at Harvard University. Felten has been published in Washingtonian, People, National Geographic Traveler, The Weekly Standard, Daily Beast, National Review, Spectator USA, and Reader’s Digest.