The D. C. Circuit released only one opinion last week, on the last day of the year, and, fittingly, it involved a January 6 defendant. It will be interesting to see what the New Year brings for these defendants whose criminal activities have occupied so much of the recent time of the courts in the D. C. Circuit and have garnered so much attention. To state the obvious (it seems ludicrous to have to make the point), they are not “political prisoners” as some have wildly and irresponsibly claimed. (Forgive the self-promotion, but I was happy to appear on 60 Minutes to make this point.)

In United States v. Munafo, No. 23-3187, Jonathan Joshua Munafo appealed his sentence related to his participation in the riot at the U.S. Capitol on January 6, 2021.  After being charged with ten counts, he pleaded guilty to two and waived the right to appeal a within-Guidelines sentence.  The district court sentenced him within the agreed-upon Guidelines range and the D.C. Circuit affirmed in an opinion written by Judge Pillard and joined by Judges Pan and Garcia.  On appeal, Munafo argued that the Government had breached the plea agreement—both by failing to dismiss an unrelated charge pending in the D.C. Superior Court and by introducing certain statements during sentencing—and that his sentence bore the impermissible appearance of resting on Munafo’s First Amendment­–protected political speech and associations. The D.C. Circuit first disagreed that the Government had breached the terms of the plea agreement. Then, because Munafo had expressly waived his right to appeal a within-Guidelines sentence, the Court assessed whether Munafo had made the necessary showing that enforcing the waiver (and letting the sentence stand) would constitute a miscarriage of justice. Assuming without deciding that a sentence that merely appears to be based on constitutionally protected speech would constitute a miscarriage of justice, the D.C. Circuit concluded that the record belied any such appearance in this case.

December saw the retirement of Elizabeth “Betsy” Paret as the D. C. Circuit’s Executive. A festive retirement party in her honor was held at the courthouse, and the speakers paying tribute to Betsy included Chief Judge Srinivasan, Circuit Judge Nina Pillard, and former Chief Judge of the District Court Royce Lamberth. Although the circuit and district court judges of the D. C. Circuit draw most of the public’s attention, the work of the Circuit Executive and her able staff is the oil that lubricates the D. C. Circuit machine and keeps it running smoothly. I don’t think there is any controversy in recognizing that the way the D. C. Circuit is run is a model for the circuit courts around the nation. Much of the credit for that goes to Betsy and her staff. Betsy is a brilliant woman, with the heart of a public servant, whose attention to detail is remarkable and legendary and was on full display in her retirement party. Betsy was extremely helpful to this judge especially when I was first learning the ropes, and, as it turns out, my experience was common. Betsy is also one of the most pleasant people on the face of the earth. I can’t recall a moment when I saw her flustered or without a sense of humor, two traits much appreciated in a high-pressure workplace. Betsy and her wife are retiring to her idyllic farm in Vermont, a move that draws the envy of many. She will be sorely missed.