Thread by @JordanOnRecord

"The government has not offered a single text message from Griffin indicating his knowledge that the vice president was in the building," Nick Smith says.

Smith says the evidence shows Griffin thought the votes had already been certified before he reached the Capitol.

Smith says nothing Griffin said on January 6 satisfies the Brandenburg test (about inciteful speech). Says Griffin leading a prayer that "calmed people down" was "not just disorderly conduct, that's the antithesis of disorderly conduct."

Smith (Nick, not David, my error) suggests a Secret Service agent would have had to inform Griffin he was entering a restricted area.

McFadden says that seems "preposterous on its face."

Smith says the DOJ failed to show any one person's presence outside the Capitol increased the security threat to VP Pence.

"The government's statements about disorderly conduct are not very credible," Nick Smith says. "The Capitol steps are a public forum, and giving speeches at a public forum cannot constitute disorderly conduct."

"It can both be true that January 6 was an embarrassing and shameful event and that the government has not proved a 1752 offense, specifically for Griffin's prayer on the Capitol steps," Smith says. "So we would ask the court to enter a not guilty finding."

"If this was a case where the defendant just hopped over a wall and hopped back, we wouldn't be having this conversation right now," Iyengar says. The issue is Griffin crossed three walls and went all the way to the inaugural stage.

Iyengar says Griffin made a statement at an Otero County Commissioners Meeting that he knew he wasn't allowed to enter the restricted area and did so anyway.

Iyengar says 1752 sets out a mens rea requirement that Griffin only know he was entering a restricted area. He didn't have to know Pence was there or anything else.

Iyengar also says 1752 doesn't require speech or actions to be inciteful to be disorderly or disruptive conduct. Says Griffin's conduct in the aggregate was disorderly and disruptive.

Closing arguments have concluded. Judge McFadden told everyone to be back at 11:45 for his verdict.

Verdict in 15 or so. Judge McFadden indicated he was a lot closer to the government's position on the entering/remaining charge than disorderly conduct. We'll see if Nick Smith's zealous closing changed that.

Judge McFadden has returned to the bench. He's going over witness testimony now. He says all three witnesses seemed credible. Matt Struck, he says, have difficulty recalling things and was also trying to minimize the culpability of Couy Griffin and, by extension, himself.

Judge McFadden says USSS Agent Lanelle Hawa was the victim of a number of "gotcha" questions and that any discrepancies between his findings of fact and her testimony were innocent and the result of trying to remember specific details from more than a year ago.

Judge McFadden says he thinks it is "likely" Couy Griffin saw the barriers outside the Capitol on January 5 when he was there.

McFadden says Couy Griffin talked about the fencing being up on January 6 while speaking at an Otero County, New Mexico, commissioners meeting.

McFadden finds that VP Mike Pence NEVER left the restricted area when he was evacuated.

🚨Judge McFadden finds Couy Griffin GUILTY of count 1, entering and remaining in a restricted building or grounds, and denies the Rule 29 motion to dismiss that count.

Judge McFadden finds the Olmsted Wall was the line that marked the restricted area on January 6.

Judge McFadden says the argument that USSS agents would have to tell people who they're protecting and where they are don't make sense to him.

He also says USSS restricted areas can be ad hoc as required to secure protectees.

"It is immaterial whether the vice president was at ground level or below ground," Judge McFadden says. He also says the U.S. Capitol Building "fits comfortably" within the definition of a restricted area under 1752.

"I think there's ample evidence Mr. Griffin knowingly entered a restricted area," Judge McFadden says. Notes he saw the snow fencing and then crossed over it, climbed over three walls and then went through a busted door onto the inaugural stage.

"By the time he was on the stage, he knew he shouldn't be there. And yet he remained," Judge McFadden says.

Judge McFadden says the government failed to carry its burden for the disorderly/disruptive conduct count, but he's also denying the Rule 29 motion to acquit.

"Nothing showed the defendant engaged in more disruptive conduct above and beyond entering a restricted area," Judge McFadden says.