Web Donations Help Jan. 6 Suspects Tap Private Legal Muscle

(January 5, 2022, 4:42 PM EST) -- When Angel Harrelson set up an online fundraiser in March, she assured would-be donors her husband "is not a monster and NOT a TERRORIST." To illustrate this, she posted a wedding photo — her in a white gown, and her husband, Kenneth, in his U.S. Army service uniform.

The wedding photo Angel Harrelson posted on the donation page she set up for the legal defense for her husband, Kenneth Harrelson. He is among those charged in the Jan. 6 riot at the U.S. Capitol.

Kenneth Harrelson faces felony charges for his alleged role in the Jan. 6 attack on the U.S. Capitol. Court filings claim that months earlier, he conspired with other members of the Oath Keepers, a far-right paramilitary group, as they coordinated travel and supplies.

Harrelson was added to a "leadership" chat, where he was dubbed "ground team lead in Florida," his indictment alleges. And during the riot, Harrelson and others donning military gear allegedly moved in a "stack" formation — single-file, each with a hand on the shoulder of the person in front — snaking past police barriers and into the Capitol.

Two months later, Harrelson was arrested. He faced a maximum sentence of 36 years behind bars and was held without bail. Since then, additional charges have raised the potential maximum sentence to 56 years.

"I have found an attorney in Washington," Angel Harrelson wrote on Kenneth Harrelson's donation page. "But it will cost me $100,000 just to retain a lawyer and $500 per hour after that plus other fees, which could cost up to $500,000."

The man seen in the foreground of this photo was identified by investigators as Kenneth Harrelson. (Source: Criminal complaint, U.S. v. Harrelson)

By December, she had raised $213,000 for legal fees and household expenses. Kenneth Harrelson has hired — and fired — several prominent lawyers. He is now represented by Bradford Geyer, a onetime federal prosecutor and CEO of the law firm FormerFeds. Geyer did not respond to a request for comment.

Private attorneys — and the hefty price tag of hiring them — are common among the Capitol riot defendants. Of the 686 who were represented by an attorney as of mid-December, 44% had retained counsel, according to a Law360 review of the dockets of 702 defendants in D.C. federal court.

That means the alleged rioters are more than four times more likely to hire a lawyer than the average federal criminal defendant. In recent years, the Administrative Office of the U.S. Courts has estimated that about 90% of federal defendants are aided by a public defender or a private attorney appointed and subsidized under the Criminal Justice Act.

Whatever the reason for the disproportionate use of private counsel, many defendants are turning to online fundraising to subsidize their costs. A Law360 review of publicly available fundraising pages found that 27% of those with retained counsel had tried crowdfunding, with mixed results for both the defendants and the platforms they turned to.

The Cost of Like-Minded Counsel

The Jan. 6 clients face particularly steep fees, according to Robert Jenkins, a partner at the D.C.-based firm Bynum & Jenkins PLLC. He is listed as defense counsel for nine Jan. 6 clients, some of whom he is representing as a court-appointed attorney, and some he is working for in a limited capacity, to help out-of-state retained attorneys with their D.C. federal court admissions.

"Even for those charged with misdemeanors, the amount of discovery being provided is substantially well beyond what we would normally see in a misdemeanor trespassing-type case," he said. "You're going to get 100 hours worth of body-worn camera video to go through, whether your client is charged with an aggravated felony or a misdemeanor."

And while defendants charged with less-serious offenses are usually more likely to reach a plea deal with the government, Jenkins anticipates that fewer insurrection cases will resolve early because the U.S. Department of Justice "seems to be seeking some amount of jail time regardless."

"I cannot imagine a flat fee being less than six figures in each one of these cases," he said.

Yet in spite of these abnormally hefty legal fees, Jan. 6 defendants are more likely than average federal criminal defendants to hire retained counsel.

About 56% of alleged Capitol rioters who are represented by an attorney have been assigned a public defender or government-subsidized lawyer, compared with an estimated 90% of criminal defendants in federal court generally.

It's difficult to pinpoint why a larger percentage of defendants charged with the attack on the Capitol are footing those large legal bills.

It's possible that they're more well off than the average criminal defendant. Judges determine eligibility for court-appointed counsel based on a defendant's income and assets, and at least two Jan. 6 defendants who asked for a public defender were found not to qualify.

And many defendants who do qualify as indigent have decided to pay for their defense anyway. At least 34 of those who were initially appointed counsel switched to a retained attorney, according to court dockets.

Politics could also be at play, according to Jenkins.

"Many of the defendants in these cases have very strong political views, and a strong desire to be represented by individuals who share those views. That's one reason why I think some of them may have been motivated to do what was required to be represented by a private counsel," he said.

That may also be why some attorneys have amassed so many Jan. 6 clients. Among the attorneys who appear most often on the Jan. 6 dockets are those who are known for championing right-leaning defendants.

D.C.-based attorney David Barry Benowitz is listed on 12 Capitol riot cases. His prior clients include a former D.C. police lieutenant charged with attempting to carry a loaded revolver into the Library of Congress and a man who pled guilty to threatening to shoot U.S. District Judge Emmet Sullivan while he presided over the criminal case of Michael Flynn, former President Donald Trump's onetime national security adviser.

Benowitz did not respond to an interview request.

Another attorney with a large slate of Jan. 6 clients is John Pierce, whose prior clients include Rudolph Giuliani, Trump's former personal attorney, and Kyle Rittenhouse, the teenager recently acquitted of homicide in the fatal shooting of two people at a 2020 racial justice protest. Pierce withdrew from that case amid allegations he improperly used Rittenhouse's legal defense fund.

The number of Capitol riot clients Pierce represents has varied. Although he has served as counsel for 28 different defendants, he lost some clients after he missed several court appearances while hospitalized last summer, sending an unlicensed associate from his firm in his stead. But on the whole, his clients have remained loyal. As of mid-December, he was still representing 21.

Pierce, who did not respond to an interview request, continues to raise funds on behalf of his clients. The website for his latest venture, the National Constitutional Law Union, is replete with paintings of the Constitutional Convention and promises donations will help "build an army of attorneys who fight for all Americans against government oppression." A disclaimer explains NCLU is applying for tax-exempt status, and that "a substantial amount" of donations "will be paid to a law firm owned and/or controlled by the founder" for "legal services and costs incurred by clients."

Online Fundraising

Many Jan. 6 defendants have turned to online fundraising to foot the bills associated with their attorneys of choice.

A Law360 review of publicly viewable crowdfunding pages available for 145 alleged insurrectionists found they had raised more than $3.6 million combined by mid-December. But their success varied. A few haven't been able to break $100, while the top fundraisers made six figures.

They include Dr. Simone Gold, the founder of the conservative anti-COVID vaccination group America's Frontline Doctors, who faces a 23-year maximum prison sentence and raised more than $420,000; Owen Shroyer, an InfoWars talk show host who received nearly $250,000 to fight charges that carry a maximum three-year sentence; and Joshua James, an Oath Keeper who raised $200,000 and is facing a maximum 59-year sentence for his alleged confrontations with police and for deleting digital evidence.

Many fundraising campaigns explicitly discuss legal defense.

Gold's page, which was tweeted out to her 388,500 followers, told donors, "the legal pressures mounting against Dr. Gold require your urgent and generous donations." Shroyer called his prosecution "a frontal assault on the First Amendment" and warned "this will not be a cheap defense." Many more have referred to themselves as political prisoners.

"The underlying question about so many of these fundraisers is: How many are just outright frauds, where the money's never going to be used on lawyers at all?" said Santa Clara University School of Law professor Eric Goldman, who serves as co-director of the school's High Tech Law Institute. "There's no way of knowing."

Another top fundraiser, an Oath Keeper named Joseph Hackett, has received nearly $120,000 for his campaign, which states that "between the legal fees and the house/office bills," his family could "lose everything." Hackett has, from the beginning of his case, been represented by court-appointed counsel. The federal public defenders representing him did not respond to a request for comment.

But Hackett was one of only two Capitol riot defendants with both six-figure donations and government-subsidized counsel. The other is Lonnie Coffman, who faced a maximum sentence of 93 years on allegations he parked his truck near the Capitol with several Molotov cocktails and guns inside. He pled guilty in November to possession of an unregistered firearm.

Click to view interactive version

Defendants with retained counsel comprised 82 of the 145 online legal defense fundraisers that by mid-December had publicly available donation totals. Defendants who were represented by court-appointed attorneys comprised 59 online fundraisers, and those who were representing themselves or had not found counsel accounted for four.

Those with retained counsel also comprised the most lucrative fundraising campaigns.

Most of the Jan. 6 defendants with indigent-defense counsel who tried crowdfunding made less than $10,000 from their campaigns, suggesting that they didn't draw enough money to afford a private lawyer, according to Maya Steinitz, a University of Iowa College of Law professor and expert on litigation financing.

"For a private criminal defense attorney, that's unlikely to go very far," she said. "Certainly not through trial."

Competing Platforms

The vast majority of these fundraisers are hosted by GiveSendGo, which bills itself as a free Christian crowdfunding site. Donors can opt to click both "give now" and "pray now" buttons — the latter sends a message to the fund's organizer.

"We give grace to people that use our platform, that have found themselves in very difficult situations," GiveSendGo founder Jacob Wells told Law360. "We believe that people are innocent until proven guilty in a court of law, not public opinion."

Other crowdfunding sites have blocked the Jan. 6 defendants. GoFundMe, for example, has disabled campaigns to aid in their legal defense.

The company declined to comment for this story, but days after the attack, a spokesman told The Washington Post that GoFundMe "strongly condemn[s] the violence and attempted insurrection, and will continue to remove fundraisers that attempt to spread misinformation about the election, promote conspiracy theories and contribute to or participate in attacks on U.S. democracy."

GoFundMe often points to its terms of service, which bar the legal defense of crimes involving "hate, violence, harassment, bullying, discrimination, terrorism, or intolerance," as well as "financial crimes or crimes of deception."

But invoking its terms of service to impose such rules often requires careful clarification, especially for a company that doesn't want to limit potential business.

In November, GoFundMe's blog encouraged users to utilize the site for defense funds, noting that "crowdfunding for legal fees can help relieve some or all of the financial burden of paying for a lawyer." Days later, the company posted a clarification of its policy for people accused of violent crimes. It noted that while the site had taken down Rittenhouse's fundraisers, now that he had been acquitted, he was free to seek donations for past legal fees or other expenses.

Payment processing companies have also objected to controversial campaigns, complicating fundraising on GiveSendGo. PayPal cut ties with the site, while Stripe reviews campaigns on a case-by-case basis. That has required GiveSendGo to temporarily suspend some pages while the site finds an alternative payment processor, Wells said.

That was the case for Nicholas Ochs, founder of the Proud Boys' Hawaii chapter, who raised nearly $20,000 before his campaign was disabled.

Platforms and payment processors are well within their legal rights to limit who can use their services, according to Santa Clara's Goldman, because "businesses just don't have to engage everyone."

"GoFundMe's decision is purely an exercise of its editorial discretion," he said. "It's decided that particular category of activities is something it doesn't want to financially support."

Wells said GiveSendGo did not grapple with its decision to allow campaigns for Jan. 6 legal defense funds, saying, "It isn't the job of GiveSendGo to be judge and jury on all of these issues."

The site complies with anti-money laundering and "know your client" regulations, as well as vetting the people posting campaigns against federal watchlists, he said, and it does draw the line at campaigns that explicitly seek to bankroll future criminal activity.

But, he noted, hiring an attorney is not illegal.

"We believe that everyone should have that same access, that it shouldn't just be rich people that have access to the best defense," he said.

--Editing by Orlando Lorenzo. Graphics by Jason Mallory.

For a reprint of this article, please contact reprints@law360.com.

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