Americans outraged by the storming of Capitol Hill are in for a jarring reality check: Many of those who invaded the halls of Congress on Jan. 6 are likely to get little or no jail time.
While public and media attention in recent weeks has been focused on high-profile conspiracy cases against right-wing, paramilitary groups like the Oath Keepers and the Proud Boys, the most urgent decisions for prosecutors involve resolving scores of lower-level cases that have clogged D.C.’s federal district court.
A POLITICO analysis of the Capitol riot-related cases shows that almost a quarter of the more than 230 defendants formally and publicly charged so far face only misdemeanors. Dozens of those arrested are awaiting formal charges, even as new cases are being unsealed nearly every day.
In recent days, judges, prosecutors and defense attorneys have all indicated that they expect few of these “MAGA tourists” to face harsh sentences.
There are two main reasons: Although prosecutors have loaded up their charging documents with language about the existential threat of the insurrection to the republic, the actions of many of the individual rioters often boiled down to trespassing. And judges have wrestled with how aggressively to lump those cases in with those of the more sinister suspects.
“My bet is a lot of these cases will get resolved and probably without prison time or jail time,” said Erica Hashimoto, a former federal public defender who is now a law professor at Georgetown. "One of the core values of this country is that we can protest if we disagree with our government. Of course, some protests involve criminal acts, but as long as the people who are trying to express their view do not engage in violence, misdemeanors may be more appropriate than felonies.”
The prospect of dozens of Jan. 6 rioters cutting deals for minor sentences could be hard to explain for the Biden administration, which has characterized the Capitol Hill mob as a uniquely dangerous threat. Before assuming office, Biden said the rioters’ attempt to overturn the election results by force “borders on sedition”; Attorney General Merrick Garland has called the prosecutions his top early priority, describing the storming of Congress as “a heinous attack that sought to disrupt a cornerstone of our democracy, the peaceful transfer of power to a newly elected government.”
Justice Department prosecutors sent expectations sky-high in early statements and court filings, describing elaborate plots to murder lawmakers — descriptions prosecutors have tempered as new details emerged.
The resolution of the more mundane cases also presents acute questions about equity, since most of the Capitol riot defendants are white, while misdemeanor charges are often a vexing problem for minority defendants in other cases.
There are also sensitive issues about precedent for the future, given the frequency of politically inspired demonstrations on Capitol Hill that run afoul of the law.
While violent assaults in the Capitol are rare, protests and acts of civil disobedience — such as disrupting congressional hearings or even House and Senate floor sessions, are more common. That means prosecutors and judges will have to weigh how much more punishment a Trump supporter who invaded the Capitol during the Electoral College count deserves than, say, an anti-war protester chanting at a CIA confirmation hearing or a gun-control advocate shouting in the middle of the State of the Union address.
Judges are also attempting to reckon with separating the individual actions of rioters from the collective threat of the mob, which they have noted helped inspire and provide cover for violent assaults, property destruction and increased the overall terror and danger of the assorted crimes committed.
That reckoning is coming sooner rather than later, lawyers say, putting prosecutors in the position of wrist-slapping many participants in the riot despite framing the crimes as part of an insurrection that presented a grave threat to American democracy.
Prosecutors have signaled that plea offers for some defendants will be coming within days and have readily acknowledged that some of the cases are less complicated to resolve than others.
“I think we can work out a non-trial disposition in this case,” Assistant U.S. Attorney Emory Cole told Judge Dabney Friedrich last week in the case of Kevin Loftus, who was charged with unlawful presence and disrupting official business at the Capitol, among other offenses that have become the boilerplate set lodged against anyone who walked into the building that day without authorization.
The Justice Department will soon be in the awkward position of having to defend such deals, even as trials and lengthy sentences for those facing more serious charges could be a year or more away.
Adding to the political awkwardness: The expected wave of plea offers comes as former President Donald Trump seems intent on falsely rewriting the history of the Jan. 6 assault. In an interview with Laura Ingraham on Fox News Thursday night, Trump suggested that prosecutors and the FBI are making too much of the Capitol takeover, which left five people dead and dozens of police officers injured.
“It was zero threat. Right from the start, it was zero threat,” Trump declared. “Look, they went in — they shouldn’t have done it — some of them went in, and they’re hugging and kissing the police and the guards, you know? They had great relationships. A lot of the people were waved in, and then they walked in, and they walked out.”
Many of the rioters charged with the most serious offenses that day have cited Trump’s own words as the inspiration they took for storming the Capitol. The House also impeached Trump for inciting the insurrection in January, before the Senate acquitted him despite a 57-vote majority in favor of conviction.
And prosecutors are facing pressure from judges to either back up their tough talk about sedition or put a lid on it. Michael Sherwin, the former lead Jan. 6 prosecutor, found himself rebuked by other senior prosecutors and Judge Amit Mehta last week for publicly flirting with the possibility of sedition charges when none had actually been leveled.
Former federal prosecutor Paul Butler said he hopes that those most troubled by the Capitol riot won’t recoil at the looming deals for many participants.
“The punishment has to be proportional to the harm, but I think for many of us, we’ll never forget watching TV Jan. 6 and seeing people wilding out in the Capitol,” said Butler, now a law professor at Georgetown. “Everybody who was there was complicit, but they’re not all complicit to the same degree for the same harm.”
A standard set of four misdemeanor charges prosecutors have been filed in dozens of the Capitol cases carries a maximum possible punishment of three years in prison. But that sentence or anything close to it is virtually unheard of in misdemeanor cases, lawyers said.
“Nobody goes to jail for a first or second misdemeanor,” Butler said flatly.
One defense lawyer working on Capitol cases also said what many in the court system are referring to as “MAGA tourists” are almost certain to escape prison time.
“What about somebody who has no criminal record who got jazzed up by the president, walked in, spends 15 minutes in Statuary Hall and leaves? What happens to that person? They’re not going to get a jail sentence for that,” said the defense attorney, who asked not to be named.
“There is a natural cycle to an event like this,” the lawyer added. “People will say it was the end of the world, then things will calm down, and they’ll begin looking at cases back on what people actually did.”
Nearly every day, federal judges are also prodding prosecutors to offer plea deals to defendants facing lower-level charges.
During a hearing Friday for Leo Brent “Zeeker” Bozell IV, son of prominent conservative activist Brent Bozell, U.S. District Court Judge John Bates told a prosecutor to “move expeditiously” to get the case resolved or headed to trial.
The younger Bozell faces a mixture of felony and misdemeanor charges for allegedly forcing his way into the Capitol and, eventually, onto the Senate floor. He pleaded not guilty to all charges Friday.
“These cases are going to move forward,” said Bates, an appointee of President George W. Bush. “The government needs to produce discovery. It needs to come up with a plea policy and implement that policy in particular cases.”
Lower-level Capitol riot defendants scored a significant victory Friday when a federal appeals court said judges need to sort out the most serious, violent offenders from those who simply walked in amidst the chaos.
“Two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities — seemingly would have posed little threat,” D.C. Circuit Judge Robert Wilkins wrote.
Within hours of the ruling, judges and defense lawyers were repeatedly citing it as clarifying who should and should not be detained, while prosecutors were trying to argue that some defendants were more dangerous than the mother-and-son team who won the favorable decision Friday.
The appeals court ruling came amid increasing signs of judges’ impatience: at least five Jan. 6 defendants were released in recent days over prosecutors’ objections.
“The judges are going to start to have had enough of this. At a certain point, they’re going to start making them do deals in these cases,” the defense attorney said.
Some of those tensions over the pace of the hundreds of cases were evident at a hearing last week for Eduardo Nicolas Alvear Gonzalez, 32, known for his prolific pot use on social media during the Capitol riot. He was arrested in southern Virginia on Feb. 9 and a magistrate judge there ordered him detained due to his efforts to evade police. It took marshals more than a month to move Alvear Gonzales to Washington.
At last week’s hearing, a federal judge in Washington freed Alvear Gonzalez into the custody of a friend in California. U.S. District Court Judge James Boasberg said he was concerned that Alvear Gonzalez had already spent as much, and perhaps more, time in jail as he was likely to get for his actions on Jan. 6.
“He’s done pretty close to two months on misdemeanors,” said Boasberg, an appointee of President Barack Obama. The judge went on to say he expected plea deals in similar cases would involve “no-jail allocutions or 30-days allocutions,” meaning the sentences prosecutors would agree to propose to judges if the defendant pleaded guilty.
While most of the defendants facing only misdemeanor charges are not in jail, Assistant U.S. Attorney Troy Edwards said prosecutors understand the urgency to get the more minor cases resolved.
“I’m very aware of that,” Edwards said. “That is a prime consideration.”
Prosecutors have sought to delay all the cases on the ground that tens of thousands of hours of social media, surveillance and body-worn camera video the FBI has assembled from the Capitol riot needs to be posted on a platform where defense lawyers in all the cases can have access to it. But defense lawyers for many so-called MAGA tourists say the attorneys don’t want to see the full collection, that it is too much for them to watch in any event and that the lower-level cases should not be put off for months over that issue.
On Monday, Magistrate Judge Zia Faruqui said the prosecution needs to pick up the pace.
“Let’s get it going,” Faruqui said during back-to-back hearings on Capitol cases. “There is, continues to percolate here in the courthouse, concerns about things moving.”
In virtually all the non-felony cases, the charges are likely to be grouped together as trespassing under federal sentencing guidelines. While those guidelines contain a small enhancement for entering a “restricted” building or grounds, defendants with no significant criminal history are looking at the lowest possible range: zero to six months. “Zero” months means no jail at all.
“Trespass is as mild as we get….There’s really no way in which you can cook the books, or the guidelines, to do above zero to six,” said Ohio State University law professor Douglas Berman, a leading authority on criminal sentencing. “This is a case where the aggravating factors are not built into the book.”
Prosecutors could ask judges to sentence lower-level defendants to more than six months, but that could disrupt efforts to get guilty pleas and could irritate judges handling more serious Capitol cases.
In theory, some defendants might be eligible for “pretrial diversion,” which could allow them to escape a criminal conviction altogether by completing a term of probation. However, Justice Department policies say such arrangements should not be used in cases “related to national security.” With officials touting the involvement of Justice’s National Security Division in the investigation, that option seems unlikely.
“They’re going to have political pressure not to agree to probation,” Berman said.
Some defendants appear to have had a felony obstruction-of-Congress charge added to their misdemeanor charges due to social media comments or videos from the Capitol that allegedly show intent to disrupt the electoral count.
That means a defendant who shouted “Stop the steal” in the Capitol or posted QAnon speculation about the Insurrection Act on social media may face far more serious charges than one who did the exact same thing on Jan. 6, but has no public record of such statements. The obstruction charge, which is essentially the same as obstruction of justice in a court case, carries a maximum possible sentence of 20 years in prison.
“If they’re basically saying what they heard the president say a half and hour earlier, it raises a question about how the First Amendment is going to apply in all these cases,” one defense lawyer said.
Another factor prosecutors and judges may weigh is that the treatment of misdemeanors by the justice system is currently the subject of intense attention in criminal justice reform circles. Reformers say such minor charges often cause major complications in the lives of the minority defendants who typically face them.
“A lot of Black or brown people, they don’t get the benefit of individual judgment or breaks,” said Butler. “I think this will be a record number of white people who appear in federal criminal court in D.C….If they’re receiving mercy, the prosecutor’s office should make sure that same mercy will be applied to all the other people who they prosecute, who are mainly people of color and low-income people.”
The former prosecutor said he hopes the high-profile Capitol prosecutions call attention to the underlying equity issues and to the fact that the vast majority of federal cases are resolved not through trials but the plea negotiations that are about to begin.
“This could be a teachable moment here for the public,” Butler said.
Hashimoto said she recognizes light sentences may be unsatisfying to those outraged by the events on Jan. 6, but jailing the lower-level offenders really won’t help. “I don’t think that will heal any of the hurt and trauma this country has felt,” she said. “They should be focusing on the people who are most culpable.”
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