Insets: Jay James Johnston (U.S. Attorney’s Office). Background: Johnston at the entrance to a tunnel of the U.S. Capitol building during the riots on Jan. 6, 2021. (U.S. Attorney’s Office).
“Bob’s Burgers” actor Jay James Johnston asked a federal judge for leniency this week, arguing prosecutors overstated his role in clashing with police during the Jan. 6 attack on the U.S. Capitol and is using his status as an acclaimed Hollywood actor to make a point to the public.
In his sentencing memo, a lawyer for Johnston, 56, of Los Angeles, tried to make his case that he wasn’t an active participant in the riots and is being made guilty by association. The lawyer argued for four to 10 months imprisonment instead of the 18 months that prosecutors are asking for ahead of his sentencing set for Monday.
“The government has steadfastly refused to admit that the evidence in support of Mr. Johnston’s indictment does not support the oversized and disproportionate role it accuses Mr. Johnston of playing,” attorney Stanley Woodward Jr. wrote in the memo. “Mr. Johnston’s conduct in this action following the events of January 6, 2021, reflect genuine remorse and an acceptance of responsibility.”
“While Mr. Johnston has pleaded guilty to civil disorder in violation of 18 U.S.C. § 231(a)(3), he should be sentenced only for his actual conduct on January 6; independent of what may have occurred around him and irrespective of his status as a Hollywood actor,” the memo continued.
Johnston traveled to Washington, D.C., from LA on Jan. 5, 2021, to attend “what he understood to be an opportunity to exercise his First Amendment rights at a pro-Trump rally,” court documents said.
“Mr. Johnston did not don paramilitary gear or have weapons on his person as other participants of that day did,” the memo said.”He wore an otherwise ordinary and unassuming outfit of gray pants, tan shoes, a camouflage-patterned shirt, a camouflaged-pattered neck gaiter (a routine accessory as a face-mask-like face covering during the COVID-19 pandemic), with a black leather jacket.”
Amid the chaos, his lawyer said, Johnston soon found himself by the Tunnel leading into the Capitol building on the Lower West Terrace. There, rioters threw objects at police, sprayed officers with mace, and pushed up against the officers defending the Tunnel.
“Mr. Johnston’s conduct was patently not criminal, and he submits that the charge to which he has pleaded guilty was brought by his mere presence amid the chaos by the Tunnel,” the memo said.
The government describes Johnston’s participation in the Tunnel as having engaged in a “heave-ho” pushing skirmish between rioters and law enforcement. But his lawyer said it is clear that the “heave-ho” occurred around Johnston, not that he participated in, let alone caused it.
While it is true that Johnston was “in” the “heave ho” event, his lawyer argued, “he cannot be burdened by or be wholly responsible for the collective actions of everyone around him that lead to his involvement, nor can the intended consequences of others intentionally engaging in the pushing be transferred to Mr. Johnston – put differently, Mr. Johnston was charged by association.”
The memo said his participation in the insurrection has led him to be effectively blacklisted by the film and television industry, and he has been publicly dropped from various projects, including as the voice actor for Jimmy Pesto, Sr. in the animated series “Bob’s Burgers.”
He now works as a handyman and splits child care duties for his 13-year-old autistic daughter with her mother, his lawyer said.
In their sentencing memo requesting 18 months incarceration, prosecutors said Johnston has no remorse. They said he took part with other rioters calling for the formation of a “shield wall” and “participated with other rioters in a group assault on the officers defending the [lower west terrace] entrance.”
Prosecutors said he later sent messages to friends and family, claiming the events at the Capitol were exaggerated by the media and that it was a “setup” by the police and Antifa.
Prosecutors said that two years later, he even dressed up as Jacob Chansley, the “QAnon Shaman,” at a Halloween party, making light of his participation in the riot.
One of his associates allegedly provided the FBI with a text message in which Johnston acknowledged being at the Capitol that day, saying, “The news has presented it as an attack. It actually wasn’t. Thought it kind of turned into that. It was a mess. Got maced and tear gassed and I found it quite untastic.”
Johnston is among several actors caught participating in the riots. Among them is a gay adult film star and Proud Boy. Another is an actor who appeared in the TV shows “Lethal Weapon,” “NCIS: Los Angeles,” and “S.W.A.T.”
Adam Klasfeld contributed to this report.
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