Indict Trump or drop our case, couple charged in Jan. 6 says

WASHINGTON — A Texas couple accused of assaulting police outside the U.S. Capitol has asked a judge to delay their trial until the Justice Department decides whether to seek an indictment for former President Donald Trump in connection with Jan. 6.

Mark and Jalise Middleton, of Forestburg, were arrested in April 2021 on multiple felony charges, including two counts each of assaulting police and one count each of obstruction of an official proceeding. According to charging documents, body worn camera footage shows Mark Middleton yelling obscenities at police and struggling with them as he pushes against a barricade while his wife Jalise “repeatedly grabs and strikes” an officer with her hand. In a video posted publicly to his Facebook account, investigators say Mark Middleton bragged that he and his wife were on the front lines and helped push down police barriers.

“Jalise and I got pepper sprayed, clubbed and tear gassed,” Mark Middleton wrote. “We had to retreat, but more patriots pushed forward, and they’re taking back our house.”

The Middletons were scheduled to begin a jury trial on Aug. 21, but on Monday their attorneys Steven R. Kiersh, representing Mark, and Robert L. Jenkins, representing Jalise, filed several motions asking the judge in the case to dismiss the case against them or at least delay the August trial date. The couple argue the Justice Department’s decision to prosecute them and not, at least to date, former President Donald Trump amounts to selective prosecution.

Kiersh and Jenkins pointed to the work of the January 6th Committee which, they wrote, interviewed thousands of witnesses and produced more than a million pages of documents and concluded the “central cause of January 6th was one man, former President Donald Trump.”

“By contrast,” the attorneys wrote, “there is not a single mention of either Mark Middleton or Jalise Middleton in the report of the Select Committee.”

The Middletons are not the first Jan. 6 defendants to argue they are the victims of selective prosecution. Former Proud Boys national chairman Enrique Tarrio repeatedly argued he was a “scapegoat” for Trump during his seditious conspiracy trial earlier this year. Other defendants have claimed their charges should be dismissed because they believed the DOJ failed to prosecute similar conduct during civil unrest during the summer of 2020. To date, not a single charge in any Jan. 6 case has been dismissed for selective prosecution.

Trump remains the subject of a grand jury investigation overseen by Special Counsel Jack Smith into the Jan. 6 riot. Numerous people in Trump’s immediate orbit, including former Vice President Mike Pence, have reportedly testified in connection with that grand jury. Last week, Smith announced Trump had been indicted on 37 felony counts in a separate grand jury investigation in Florida stemming from his alleged mishandling of classified documents following his presidency. The former president was also indicted on 34 counts by a New York grand jury in April in a case alleging he’d falsified business records to cover up a hush money payment to porn star Stormy Daniels during the 2016 election. Trump is also reportedly the subject of an investigation into possible election meddling in Georgia during the 2020 election. According to the Associated Press, Fulton County District Attorney Fani Willis, who is overseeing the investigation, has said any charging decisions from that investigation will likely be announced in August.

On Monday, Kiersh and Jenkins argued the case against the Middletons shouldn’t proceed until the grand jury investigating Trump’s role in Jan. 6 had concluded. As of Monday evening, neither the Justice Department nor U.S. District Judge Randolph Moss, who is presiding over the Middletons’ case, had responded to the motion.

In December, the January 6th Committee made the historic — albeit legally weightless — decision to refer Trump to the Justice Department on four criminal counts stemming from Jan. 6, including insurrection. At least one federal judge has indicated he believed a charge against Trump could be sustained. In a March 2022 order, U.S. District Judge David O. Carter wrote that the evidence before him showed Trump and attorney John Eastman "more likely than not" attempted to obstruct the joint session of Congress when they devised a plan to pressure Pence to overturn the election. To date, no criminal charges have been filed against Trump, Eastman or anyone involved in the plan to pressure the vice president to reject electoral votes.