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Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia blasted the government on Oct. 28 for its “schizophrenic,”
“baffling,” and “muddled” policies in offering lenient plea deals to Jan.
6 Capitol riot defendants for their participation in an event that it
routinely describes in sentencing memos as “a criminal offense
unparalleled in history.”

Her frustration appears to stem from the fact that of the 115 guilty pleas obtained in the Capitol riot cases as of Oct. 27, 99 defendants (86
percent) had pleaded to misdemeanors, including 87 (75 percent of the
whole) who had been permitted to plead to a class B misdemeanor (40 U.S.C. 5104(e)(2)(G))—a so-called petty offense for which the maximum punishment
is just six months incarceration.

But this avalanche of petty-offense convictions appears to be the result
of a conscious—and sensible—attempt by the government to clear its dockets
of the nonviolent cases so that it can devote scarce resources to
literally hundreds of serious felonies.

The guilty pleas—which represent about 15 percent of the more than 650
federal cases brought so far—are a subset that is heavily skewed toward
the least severe conduct. In all but one instance, those pleading guilty
to class B misdemeanors were only pleading down from class A misdemeanors;
they were not pleading down from felonies.

It is the serious felony prosecutions—especially the sprawling conspiracy cases—that not only deserve the most attention but also hold out the
greatest prospect of enhancing the public’s understanding of the causes of
the riot. A case against 17 Oath Keepers, for instance, is set for trial
in April. Four additional conspirators have already pleaded guilty,
pledging extensive cooperation. Prosecutors clearly suspect that still
others may have been culpable, including those described in the indictment
as Persons 1, 2, 3, 10, 14, 15, 16, 19, and 20. (Person 1 is widely
reported to be the Oath Keepers’ co-founder, Stewart Rhodes, who has
denied wrongdoing.) The case is also of interest because several of the
charged defendants appeared to be acting as bodyguards for pardoned Trump adviser Roger Stone on the morning of the riot. Stone has also denied wrongdoing.

Of comparable public interest are three conspiracy cases against 12 Proud
Boys, including Dominic Pezzola—who is accused of being the individual
who, captured in now iconic video, smashed out a window on the Upper West Terrace with a police officer’s stolen riot shield. That’s the window
through which the very first rioter penetrated the Capitol building at
about 2:13 p.m. on Jan. 6.

This post, however, focuses largely elsewhere. Here, I look closely at the guilty pleas because those cases are fully mature; the defendants have
admitted the charges. I also place this subset of cases, however, within
the context of the larger corpus of all arrests. I attempt to shed light
on who the defendants are, what their goals were, how evidence against
them is being gathered, and how prosecutors and judges are responding.

Of the three genres of investigation now converging around the Jan. 6
Capitol riot—the congressional inquiries, the civil lawsuits and the
federal criminal prosecutions—this last group is surely the most granular, multifarious and challenging to comprehend.

This post takes on that challenge. Caveat: It’s still very early. While
the more than 650 federal cases brought already represent the largest
federal investigation in history, that number mounts daily, with the
Justice Department now estimating that more than 2,000 people “were
involved with the siege,” up from earlier assessments of around 800. (A
recent Huffington Post analysis suggests that 2,500 is a more realistic number.)

All aspects of this examination rely heavily on analysis compiled and
documents culled by the George Washington University Program on Extremism.
The program’s materials have been supplemented with data and analysis from
the Justice Department itself, my own research in federal court dockets,
and news articles (as well as real-time tweet threads) by the various
daily reporters steeped in these cases.

A Justice Department spokesman declined all comment for this post, except
to refer to publicly available information.

Who Are the Accused, and What Are They Charged With?

To understand the context for the guilty pleas, it’s necessary to first
step back and look at the total corpus of arrests. What can be said about
these defendants and how the Justice Department is approaching its
daunting task?

First, who are the accused? According to the Program on Extremism, 86
percent of them are men, their average age is 39, and they came from 44
states and the District of Columbia. About 12 percent (76) had military experience, including one active-duty Marine. In absolute terms, the
states most represented in the siege were Florida (72 defendants), Texas
(59), and Pennsylvania (57), while the leading jurisdictions on a per-
capita basis were the District of Columbia, Montana, Pennsylvania, and Kentucky.

One academic study has concluded, counterintuitively, that at least 52
percent of the rioters came not from Trump country but, rather, from
counties that President Biden won in 2020. That study, summarized in the Washington Post in April, was based on the first 377 defendants charged
and was performed by the Chicago Project on Security and Threats, which is
led by University of Chicago political science professor Richard Pape. It concluded that “counties with the most significant declines in the non- Hispanic White population [were] the most likely to produce
insurrectionists who now face charges,” as Pape wrote in the Post.
“Counties that had the greatest decline in White population had an 18
percent chance of sending an insurrectionist to D.C.,” he continued,
“while the counties that saw the least decline in the White population had
only a 3 percent chance. This finding holds even when controlling for population size, distance to D.C., unemployment rate and urban/rural
location.”

In terms of the Justice Department’s approach, roughly half of the 650 defendants have been charged with at least one felony, in contrast to the
large percentage of petty misdemeanors seen among the early guilty pleas. (That’s an estimate because neither the Justice Department nor the Program
on Extremism breaks down the sample in that binary fashion.) It’s not surprising that those charged with misdemeanors would plead guilty more
quickly than those charged with felonies. Felony defendants may be more reluctant to take pleas, because of the substantial prison time they face.
Such cases are also often more complicated for prosecutors to build and
for defense lawyers to defend.

According to the Justice Department, at least 260 defendants (about 40
percent of the total) have been charged with what has emerged as the go-to felony in these cases: “corruptly obstructing, influencing, or impeding an official proceeding” (18 U.S.C. § 1512(c)(3)), which carries a maximum
sentence of 20 years imprisonment.

At least 190 defendants—a group that largely overlaps with those charged
with “corruptly obstructing”—have been charged with felonies against law enforcement officers. Sixty of these individuals have been accused of
using a dangerous weapon or causing serious bodily injury—an aggravating factor. Weapons included pipes, bats, hockey sticks, flag poles, stun
guns, bear spray, wooden planks, a spear, stolen police shields and
batons, and fire extinguishers (discharged or thrown). About 140 officers
were assaulted during the attack.

The crimes against police officers are charged as either “assaulting,
resisting or impeding” an officer (18 U.S.C. § 111(a)(1)) or “obstructing, impeding or interfering” with one during a “civil disorder” (18 U.S.C. § 231(a)(3)). The assault felony carries an eight-year maximum—or 20 years
for aggravated cases—while the civil disorder charge carries a five-year maximum.

At least 40 defendants have been charged with conspiracy—to obstruct a congressional proceeding, to obstruct law enforcement during a civil
disorder, or to injure an officer. Another 70 have been charged with destruction or theft of public property—though that figure includes both felonies and misdemeanors.

In the overwhelming majority of all cases (88 percent), defendants have
been charged with “entering or remaining” in a restricted federal building
or grounds (18 U.S.C. §§ 1752(a)(1) and (2)). This is a class A
misdemeanor with a one-year maximum sentence. Nearly all of these
defendants have also been charged with “parading, demonstrating, or
picketing” in the Capitol building—the earlier-mentioned class B
misdemeanor (40 U.S.C. § 5104(e)(2)(G)) that accounts for fully 75 percent
of the guilty pleas to date.

The Dogs That Haven’t Barked

In charging documents, there are two dogs that conspicuously haven’t yet barked. No defendant, so far, has been indicted for either insurrection
(18 U.S.C. § 2383) or seditious conspiracy (18 U.S.C. § 2384).

Conviction under the criminal insurrection statute —which reaches “whoever incites ... assists, or engages in any rebellion or insurrection against
the United States ... or gives aid or comfort thereto”—carries a 10-year
prison term plus a mandatory bar from holding “any office under the United States.”

Politically, insurrection is also an explosive term. If the riot was an insurrection, an argument might at least be made—depending on what
evidence eventually emerges—that certain past or current federal or state legislators, military veterans, or conceivably former President Trump
himself, could now be excluded from holding public office under the
opaque, long-dormant terms of Section 3 of the 14th Amendment.

For many Republicans, the word “insurrection” is anathema. Rep. Andrew
Clyde, R-Ga., who helped barricade the House chamber during the attack to
stem off the intruders, has asserted that “to call it an insurrection, in
my opinion, is a bald-faced lie.” (In the same speech, Clyde infamously observed: “If you didn’t know the TV footage was a video from January the sixth, you’d actually think it was a normal tourist visit.”)

Still, both prosecutors and judges have used the “i” word. In an early
court filing urging the pretrial detention of Jacob Chansley—the so-called QAnon Shaman—the government used it no fewer than nine times. Importantly, though, those papers were filed on Jan. 14, when, as detailed in the same motion, prosecutors feared they were facing an “insurrection movement” and
that additional “insurrection attempts” would occur at state capitols
around the country as well as during the then-upcoming Inauguration. I
haven’t seen the word “insurrection” in any recent government filings,
however; perhaps the sense of urgency has dissipated since President Biden
was sworn in. (In March, in the context of a Jan. 6 defendant’s appeal of
his pretrial detention as a danger to the community, Judge Gregory Katsas
of the U.S. Court of Appeals for the District of Columbia Circuit
wrote—albeit in a dissenting opinion—“[T]he transition has come and gone,
and that threat has long passed.”)

The seldom-used seditious conspiracy statute has likely been avoided for different reasons. Historically, it was used against advocates of
politically unpopular causes—communists and advocates of Puerto Rican independence, including one attack at the Capitol—in situations that
sometimes raised First Amendment issues. Still, it was invoked
successfully against Sheik Omar Abdel-Rahman in the 1993 World Trade
Center bombing. (The last defendants charged under the law—members of an anti-police, Christian militia group in Michigan in 2010—were acquitted by
a judge after trial in 2012.)

The seditious conspiracy statute could yet make an appearance in these
cases, however. Aspects of that statute’s language are remarkably on
point. It covers not only conspiracies to “overthrow” the government but
also conspiracies “to prevent, hinder, or delay [by force] the execution
of any law of the United States.” There can be little doubt that for many rioters forcibly delaying execution of the Electoral Count Act of 1887 was
the whole point. “This wasn’t a mob,” said one in a video interview on Instagram the day after the event, according to a government filing in his case. “This was an organized unit of patriots trying to take on tyrants.
This was patriots on ... a mission to have the Capitol building. To stop
this presidential election from being stolen.”

This past March, then-Acting U.S. Attorney for the District of Columbia
Michael Sherwin told 60 Minutes that seditious conspiracy charges were, in fact, being considered (and that former President Trump’s conduct was
being looked at). Sherwin stepped down later that month, after the Justice Department initiated an internal inquiry into his having granted the unauthorized and provocative interview. (Justice Department officials, including Attorney General Merrick Garland and Acting U.S. Attorney
Channing Phillips, have been tight-lipped about the investigation since
then.)

In September, the seditious conspiracy charge did surface—at least in a
search warrant. Kellye SoRelle, the general counsel of the Oath Keepers,
was reportedly served with a warrant to examine the contents of her cell
phone. The warrant listed seditious conspiracy as one of nine criminal
statutes implicated by the investigation.

The irony of the Justice Department’s apparent reluctance to charge either “insurrection” or “seditious conspiracy” to date is that the felony it has evidently chosen so far to prosecute in its place—“corruptly obstructing, influencing, or impeding an official proceeding” (18 U.S.C. §
1512(c)(3))—is quite controversial, too, if not downright dicey. At least
two federal district judges—Randolph Moss and Amit Mehta—have already
expressed serious concerns about the law’s applicability to the Capitol
riot. They are troubled both by its having been enacted in the context of fighting financial crime—it was part of the post-Enron Sarbanes-Oxley Act
of 2002—and by the absence of a clear “limiting principle” to signal when prosecutors should invoke this 20-year felony in lieu of charging the
available class A or B misdemeanors that snugly fit the conduct alleged.
Though not dispositive, the inapt title of the offense—“tampering with a witness, victim, or an informant”—may not help the prosecution’s cause.
(With its 20-year maximum penalty, the “corruptly impeding” charge is more serious than the incendiary “insurrection” charge, which carries only a
10-year maximum.)

How Are the Cases Being Made?

In reviewing the key charging documents and statements of fact for the 115 defendants who have pleaded guilty—which include 16 who have pleaded to felonies—one gets a feel for how the cases are being put together. (This
post uses Oct. 27 as its cutoff date for statistical calculations; the
numbers change daily.)

For most of the cases, there’s little mystery to it. As New York Times
reporter Alan Feuer put it Oct. 12, “Never in the history of humanity has
there been a crime documented as well as this one as it was happening ... including ... by the defendants themselves.” (Feuer made the remarks in a YouTube interview conducted by the Program on Extremism’s deputy director, Seamus Hughes, with four daily reporters covering the January
prosecutions.)



According to the Program on Extremism’s research, at least 85 percent of
all the prosecutions employ, at least in part, evidence from social media
posts made by or about the defendants either before, during or after the riot—often all three. The most popular forums were Facebook and Instagram, which dwarf specialized, reputedly right-wing apps like Parler or Gab in
the frequency with which posts from their sites show up as evidence in the cases. A remarkable number of defendants—even those facing serious felonies—posted or shared incriminating live videos or photos, or at least filled their phones with them (where they could later be mined by
investigators via search warrant).

Defendant Edward Jacob Lang, for instance, who is alleged to have engaged
in pitched battles with police officers for nearly two and a half
hours—kicking them, jabbing them with a bat and throwing a fire
extinguisher at them—took periodic time-outs to post live videos or
selfies on Facebook or Instagram, according to government filings in his
case. In one instance, he superimposed a pointing-hand icon with the
legend: “THIS IS ME.”

At least one defendant’s phone was running Life360—an app designed to let family members keep track of each other’s whereabouts—throughout the riot, recording his incriminating locations. Two other defendants were turned in
to the FBI by unimpressed matches on the dating app Bumble, to whom they
had boasted of their exploits after the fact.

On top of that, there was an ocean of news media footage. And within the Capitol building itself and its restricted perimeter, 515 security cameras
were filming, too. The latter captured about 4,800 hours of video—four terabytes worth—according to a recent government filing. Body-worn cameras
on 900 police officers contributed another 1,600 hours of footage. (At
least one defendant wore his own body camera.)

The FBI was also deluged with tips from the defendants’ current and former colleagues, acquaintances, and relatives. Online citizen sleuths,
operating under rubrics like #SeditionHunters, also pored over the
available footage, providing tips to investigators.

To make out probable cause, the FBI sometimes served search warrants on
the likes of Facebook, Snapchat, Google, AT&T and Verizon. Search warrants
to Google and the phone companies sought geolocation information drawn
from GPS data, nearby Wi-Fi access points, and Bluetooth beacons. In
response, Google provided maps showing the suspect’s path within the
Capitol building, with circles reflecting a 10-meter radius of accuracy,
which the company maintains is reliable “68 percent of the time,”
according to the criminal complaints.


Too Much Evidence

While all this low-hanging fruit has been a bonanza for the FBI, it
presents a challenge for prosecutors. They have to somehow comply with
their discovery obligations—providing access to terabytes of incriminating video and documents to hundreds of defense counsel strewn across the country—while also meeting their statutory obligations under the Speedy
Trial Act. That law guarantees the defendant a right to go to trial within
70 days of commencement of his or her case, though there are lots of exceptions.

In March, according to Reuters, a senior official in the U.S. Attorney’s
Office for the District of Columbia—which is responsible for all the
Capitol riot prosecutions—proposed a plan to cope with this predicament.
It included resolving “less complex cases with plea deals, a move designed
to ease the government’s burden to produce evidence because defendants typically waive their discovery rights.” (Again, a Justice Department
spokesman declined comment.)

In any case, given the strain on scarce resources, quickly disposing of
the minor cases is just common sense. And the lenient outcomes are not necessarily unjust—at least in many cases.

Both prosecutors and judges have struggled with how to punish the
individual culpability of nonviolent and cooperative participants in a manifestly violent mob that marred the peaceful transfer of power for the
first time in the nation’s history. Even nonviolent participants could not
have missed the overturned barriers; the broken windows, doors, and
debris; the blaring alarms; the chemical irritants in the air; the chants decrying police as “traitors”; and, often, the nearby violent
confrontations with the police.

The standard language of the government’s sentencing memoranda—filled with on-the-one-hand, on-the-other-hand sentiments—reflects these tensions.

“The defendant stands before this Court to be sentenced on a misdemeanor conviction,” reads one boilerplate section in most misdemeanor cases, “but
his conduct on January 6, like the conduct of scores of other defendants,
took place in the context of a large and violent riot that relied on
numbers to overwhelm law enforcement, breach the Capitol, and disrupt the proceedings. But for his actions alongside so many others, the riot likely would have failed.”

The standard language also takes a shot at Rep. Clyde’s trivializing
comments about the siege. “Make no mistake,” the government writes, “no
rioter was a mere tourist that day.”

Still, there are often extenuating circumstances for the nonviolent, first-offender defendants. Some can be heard on videos urging other
rioters not to vandalize. Many cooperated quickly and seemed repentant to investigators or the probation department—factors that prosecutors
routinely reward with some leniency. The defendants’ own sentencing memos
tell moving stories of family obligations and hardscrabble financial circumstances. Even a short term of incarceration could cause them to lose their jobs or businesses, or leave them and their families homeless. And whether or not former President Trump’s fiery rhetoric amounted to “instigation” in a legal sense, defense lawyers have argued—with some force—that it should be a mitigating factor at sentencing.

“Mr. [Andrew] Bennett, like many hundreds of thousands, actually millions
of Republicans, were persuaded by Donald Trump’s incessant and negative messaging,” reads one brief filed by the Office of the Federal Public
Defender in Washington, D.C. “His messaging was supported and amplified by
his powerful allies in government, business and the media. The message to
his captive audience was that American democracy was in peril. ... Trump
called for action. ... [He] called on his millions of supporters to travel
and demonstrate in Washington, D.C. on January 6, 2021. Mr. Bennett
answered that call.”

Judges, too, have often talked tough in these cases—only to sentence more leniently than the prosecution recommended. That, in fact, was the
ultimate plot twist in the sentencing described at the beginning of this
post, in which Chief Judge Howell castigated prosecutors for their “schizophrenic” and “baffling” charging decisions. That was the case of defendant Jack Griffith, a nonviolent but singularly unrepentant
individual who, after pleading guilty, tried to leverage his status as a
rioter on social media to raise money to develop a video game depicting an armed Trump character blowing away monsters, Antifa, and “Dem Zombies,” as BuzzFeed’s Zoe Tillman first reported. In the end, however, Howell not
only accepted the plea—no judge has rejected one—but she imposed a lighter sentence than the prosecutors sought: 90 days home confinement (plus
probation) instead of 90 days incarceration. She claimed that her hands
were tied by the need to be consistent with other judges’ light sentences.

It’s not clear that they were. As of Oct. 27, the 18 people sentenced for
class B misdemeanors had received widely varying sentences, with seven
going to jail (for terms ranging from 14 days to six months), four serving
home confinement plus probation, and seven receiving purely probationary
terms (ranging from two months to five years).

This disparity reflects both a wide range in conduct as well as,
inevitably, the differing predispositions of judges on sentencing
questions. Judges have some discretion here, as class B misdemeanors are
not subject to the sentencing guidelines. Still, there are statutory
factors that judges are supposed to consider (18 U.S.C. § 3553(a)).

In recent testimony before the House Judiciary Committee, Attorney General Garland stressed that the Justice Department and the U.S. Attorney’s
Office for the District of Columbia have, working together, developed “guidelines for the kinds of pleas that can be accepted, so there’s not
... unequal treatment between people who did the same thing.” In their sentencing memos, prosecutors say that nine factors guide their recommendations:

(1) whether, when, and how the defendant entered the Capitol building; (2) whether the defendant engaged in any violence or incited violence; (3)
whether the defendant engaged in any acts of destruction; (4) the
defendant’s reaction to acts of violence or destruction; (5) whether
during or after the riot, the defendant destroyed evidence; (6) the length
of the defendant’s time inside of the building, and exactly where the
defendant traveled; (7) the defendant’s statements in person or on social media; (8) whether the defendant cooperated with or ignored law
enforcement; and (9) whether the defendant otherwise exhibited evidence of remorse or contrition.”

Generalizations about felony sentences are not possible at this early
stage. Only two convicted felons have been sentenced so far—one to eight
months and the other to 14 months incarceration. But another 13 who have pleaded guilty to felonies are almost certainly facing substantial prison terms. According to their sentencing guidelines, 10 of them—most of whom
are already in custody—face more than three years, and two of those are
looking at more than five years in prison (a guideline range of 63 to 78 months).

What Do the Cases Say About the Causes of the Riot?

So far, the only conclusions that can be drawn about causation are fairly obvious ones. Judging from the charging documents and the admissions of
those who have pleaded guilty, belief in the “big lie”—that Trump won the election—was virtually universal.

But beyond Trump’s having propagated that lie, do these cases suggest that
he more actively instigated the riot? A handful of defendants or defense lawyers have claimed that they might try to mount a “public authority
defense,” on the theory that defendants thought they were acting at
Trump’s invitation, and that Trump should be considered the chief law enforcement officer of the United States.

But these self-serving statements by defendants blaming Trump after the
fact are not very probative of whether Trump instigated the riot. More
weighty, by contrast, are the many defendant statements that were made
before the siege, suggesting that Trump was driving their decision to
attack.

The charging documents show how weeks before the riot, for instance, a
number of defendants were referencing in texts and social media posts
Trump’s Dec. 19 tweet: “Big protest in D.C. on January 6th. Be there, will
be wild!”

“Trump said It’s gonna be wild!!!!!!!,” Oath Keeper Kelly Meggs wrote in a Facebook message three days after that tweet, according to the 14-count indictment that charges him and 16 others with five felonies. “He wants us
to make it WILD that’s what he’s saying. He called us all to the Capitol
and wants us to make it wild!!! Sir Yes Sir!!! Gentleman we are heading to
DC pack your shit.”

Two days after that, future misdemeanor defendant Thomas Vinson
independently posted on Facebook, “Room is booked for DC. ... I’m a
veteran who[se] Oath will NEVER expire. Stand Strong, and Stand Now! ...
It Will be Wild. My President Proclaimed It So!”

What appears to be an official advertisement for the Jan. 6 March for
Trump rally—a screengrab of which was found on the phone of misdemeanor defendant Matthew Mazzocco after his arrest—quoted that tweet, too. “The President is calling for us to come back to Washington on January 6th for
a big protest,” the ad’s copy read. “‘Be there, will be wild.’”

But if much more is to be learned about causation from the criminal prosecutions, it will most likely have to come from the conspiracy cases
that have been filed against Oath Keepers, Proud Boys or Three Percenters.
The big, unanswerable question—at least so far—is whether any squeezed defendant, persuaded to cooperate, might one day implicate white-collar types—like funders or organizers—across the air gap, so to speak, from
those who did the dirty work in the Capitol that day.

https://www.lawfareblog.com/what-do%E2%80%94and-will%E2%80%94-criminal- prosecutions-jan-6-capitol-rioters-tell-us

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