Timothy Hale-Cusanelli (via DOJ)
A former Army Reservist with a history of spouting neo-Nazi rhetoric and imagery cannot get a new trial or an acquittal on charges related to his participation in the Jan. 6 attack on the U.S. Capitol, a federal judge ruled on Monday.
In May, a federal jury convicted Timothy Hale-Cusanelli on a felony count of obstructing an official proceeding and four misdemeanors related to his breaching of the Capitol and his actions inside the building. Prosecutors want him put away behind bars for six and a half years.
U.S. District Judge Trevor McFadden, a Donald Trump appointee, saw no reason to disturb any of those convictions.
“The Court finds that Hale-Cusanelli has given no reason for the Court to rethink its pretrial orders nor that his trial was deficient,” his order states. “The Court thus denies his motion.”
By far, the most serious count against Hale-Cusanelli is obstructing an official proceeding, and he challenged the Justice Department’s application of the statute, which has been upheld in the vast majority of Jan. 6-related cases. Hale-Cusanelli lost his bid to have McFadden reconsider his ruling upholding the use of that statute.
“Beyond these interpretive arguments, Hale-Cusanelli challenges the evidence of his obstruction conviction,” the ruling states. “He says that because the certification had adjourned before he entered the Capitol, his individual actions never obstructed any official proceeding. […] This argument is, at best, self-refuting. Hale-Cusanelli admits that the trial evidence showed obstruction by ‘the collective mob’ on January 6. […] As the jury observed in multiple videos he joined that mob, a fact he glosses over in his briefing now. So under his own theory, the collective obstruction is also his. At any rate, his presence in the building for 40 minutes at the very least prevented Congress from reconvening the certification. That qualifies as ‘obstruct[ing]’ or ‘imped[ing]’ an official proceeding.” (Citations omittted)
Hale-Cusanelli’s prosecution shed light on the fact that he once held a “Secret” clearance while espousing extremist views. Prosecutors disseminated images of him sporting an Adolf Hitler-esque mustache — and said a confidential source quoted Hale-Cusanelli saying the Nazi dictator “should have finished the job.”
The Nazi regime murdered six million Jews during the Holocaust.
Hale-Cusanelli argued that the judge should not have allowed a jury to hear his “unsavory statements,” including his endorsement of a civil war to provide a “clean slate” or overtly racist, misogynist and antisemitic remarks.
“The Court determined that Federal Rule of Evidence 403 barred his alleged statements about Jews, the Nazi party, minorities, or women because they were of limited probative value and would prejudice him in the jury’s eyes,” the judge noted. “But the Court admitted Hale-Cusanelli’s ‘political and civil war-related statements’ because they were probative of his motive.”
When the government noted that some of Hale-Cusanelli’s statements straddled both categories, Judge McFadden decided to review those overlaps on a case-by-case basis at trial.
“To be sure, these statements included distasteful language and sentiments,” the order states. “For that reason, the Court gave a limiting instruction proposed by Hale-Cusanelli himself. […] The Court instructed the jury ‘not to use [its] personal opinion and disagreement of the language used to find Mr. Hale-Cusanelli guilty.’ […] That was enough to ensure that the language of these relevant statements did not cause ‘unfair prejudice’ to him.” (citations omitted)
As the ruling recounts, the government quoted Hale-Cusanelli’s antisemitic conspiracy theory that Jewish interests control the Democratic Party during opening statements and displayed one of his racist text messages during summations.
“Trump is leading in all the remaining states that matter. Minus n***** rigging, which they’ll try, he wins,” that text message reads, as redacted in the order.
McFadden noted that these disclosures by the government obeyed his order.
“The Government mentioned only statements that expressed Hale-Cusanelli’s political opinions. That complied with the Court’s pretrial ruling, rendering doubtful any ‘misconduct’ by the Government,” the order states. “But even if misconduct stemmed from these epithets, the Court gave a limiting instruction as to how the jury should view them.”
Hale-Cusanelli’s defense attorney denies that his client is a neo-Nazi and has claimed that the notorious photograph of the convicted rioter dressed like Hitler was meant to spoof government lockdowns during the COVID-19 pandemic. The defense memo does not dispute the accuracy of Hale-Cusanelli’s racist and antisemitic invective, except to claim that it was “ironic.”
In an investigative report, NPR quoted seven of Hale-Cusanelli’s current and former inmates behind bars saying that they witnessed him making antisemitic comments or drawings. One said he drew “Nazi-style propaganda cartoons.”
Hale-Cusanelli’s sentencing has been scheduled for Sept. 22 at 10 a.m.
Read the order, below:
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