Angry Trump supporter is convicted of making murderous threats following 2020 election

You get the feeling that a case like this would never have happened 10 years ago. The defendant in this case was arrested for making public threats against public officials after Donald Trump lost the 2020 presidential election. The jury convicted him of threatening to kill a member of Congress, and the trial judge sentenced him to 19 months in prison. The Court of Appeals affirms the conviction and the sentence and further holds the trial court did not violate the Sixth Amendment in closing the courtroom during trial to deal with the COVID-19 threat.

The case is U.S. v. Hunt, issued on September 20. Defendant was enraged that Trump lost the election. "He questioned the legitimacy of the vote count and condemned 'deceitful leftists' as 'domestic terrorists and enemies of our constitutional republic . . . [who] will be dealt with one way or another.' Beginning in late November 2020, Hunt made threats on various social media platforms against prominent elected officials, including House Speaker Nancy Pelosi, Senate Majority Leader Charles Schumer, and Congresswoman Alexandria Ocasio-Cortez." What got defendant convicted was something he said on BitChute a YouTube-like video sharing platform. He said:

Hey guys, so we need to go back to the U.S. Capitol when all of the Senators and a lot of the Representatives are back there and this time we have to show up with our guns and we need to slaughter these motherfuckers . . . . If anybody has a gun, give me it. I will go there myself and shoot them and kill them. We have to take out these Senators and then replace them with actual patriots.

He also said, "lets go, jan 20, bring your guns," and “everyone should come to Washington, D.C. on January 20th wearing masks and camo, concealed carry, body armor and just blast them all away while we still have a chance,” and “[t]here are really only a hundred of these weakling Senators. . . . Every single one of them just needs to go.” In a post-January 6 world, comments like this are not that surprising. But they are still illegal. The jury found defendant guilty, and the Court of Appeals (Walker, Parker and Bianco) affirms, holding that these comments represent "true threats" and are there exempt from First Amendment protection. The Court of Appeals reasons:

Hunt emphatically stated his own violent intent. Using the first person, he said: “we have to show up with our guns,” “we need to slaughter these moutherfuckers,” and “I will go there myself and shoot them and kill them.” He also reiterated his seriousness in replies to comments posted to the video and in two follow-up videos. Circumstances surrounding the video are relevant as well.  

Hunt posted the BitChute video two days after a mob violently  attacked  the  U.S.  Capitol  in  an  attempt  to  prevent certification of the 2020 presidential election. In this context, a reasonable person could conclude that Hunt was serious when he said that “we need to go back to the U.S. Capitol.” We have no difficulty concluding that the jury reasonably found that Hunt’s BitChute video constituted a true threat to assault or murder.

The other issue here is the partial courtroom closure. Under the Sixth Amendment, courtrooms must be open to the public. Every now and then, you see an appellate court awarding a criminal defendant a new trial because the trial judge closed the courtroom without sufficient justification. This case went to trial during the COVID crisis, and the trial court said the defendant's father and other spectators could watch the trial in a different room through an internal video link. Under the "plain error" standard of review (as defendant did not object to this during trial), the trial court did not violate the Sixth Amendment because it (1) advanced the public interest in limiting the spectator crowd during a pandemic, (2) the restriction was narrowly tailored as the closure excluded everyone was excluded from the courtroom (which allowed the jury to spread out in the spectator section of the courtroom), (3) and the trial court told the jury not to hold it against defendant that he had no visible support in the courtroom during the trial.