Published by The Lawfare Institute
in Cooperation With
Earlier this month, a Washington Post analysis suggested that the sentences of Jan. 6 Capitol riot defendants may reflect political bias on the part of the judges handling these cases.
Is the Post right and, more broadly, are judges showing their political colors in other ways involving these defendants?
The evidence is mixed. On the one hand, as we’ll see, judges have shown commendable bipartisanship in how they’ve handled certain key issues.
At the same time, the Post is clearly onto something. At least an undercurrent of low-grade tribalism has often surfaced in the judges’ handling of these cases.
Maybe that’s inevitable. It’s human nature. Yet it’s troubling and disappointing given the historic, sui generis nature of the crimes in question. And one can only devoutly hope that when major legal issues from these politically divisive cases begin reaching the U.S. Supreme Court, the justices will find their way to rare bipartisan consensus.
Here’s what the Post did. It reviewed the 74 sentences that had been handed down by the U.S. District Court for the District of Columbia (where all the Jan. 6 Capitol riot cases are being filed) as of the first anniversary of the event. Then it compared those sentences to the terms the prosecutors had sought.
As an initial matter, the Post found that 49 defendants—two-thirds—received lighter sentences than prosecutors had recommended.
That much was not surprising. Light sentences were to be expected given that (a) all of these sentences stemmed from guilty pleas—a factor counseling leniency in itself; (b) prosecutors often seek more time—and defense lawyers less—than they realistically expect, with judges imposing sentences in between; (c) nearly 90 percent of the pleas were to nonviolent misdemeanors; (d) the vast majority involved first offenders; and (e) the lion’s share of pleas were, in fact, to Class B misdemeanors—petty offenses carrying only a maximum theoretical term of six months in jail. (See my own analysis of the early guilty pleas here.)
Still, when the paper drilled down, it uncovered some unmistakable trends. Of the 49 sentences that were lighter than prosecutors sought, 30 (61 percent) had been handed down by Republican appointees. This tilt could not be explained by the distribution of Republican appointees on the bench. Of all the judges who have sentenced a Capitol riot defendant, 10 were appointed by Democrats, while eight were appointed by Republicans.
Upon swiveling the tables—homing in on which judges imposed sentences that were harsher than the prosecutors requested—a mirror-image pattern emerged. Of the 11 sentences that were tougher than the government sought, nine (82 percent) were imposed by Democratic appointees.
At a more granular level, matters got even worse. Two judges appointed by President Trump were the ones who most frequently went under prosecutors’ recommendations. U.S. District Judge Carl Nichols had done so in eight of the 10 sentencings he’d handled, for instance, while Judge Trevor McFadden had done the same thing in five of his seven sentencings.
At the other end of the spectrum, U.S. District Judge Tanya Chutkan, a President Obama appointee—and former supervisor in the Public Defender Service in Washington, D.C.—was the harshest sentencer. She imposed more time than prosecutors sought in seven of her eight sentencings. (As early as last October, several daily reporters had noticed that McFadden and Chutkan were emerging as “polar opposites” in sentencing, as the New York Times’s Alan Feuer put it, with McFadden being “the judge who’s been the most skeptical of jailtime for low-level J6 defendants.”)
So, yes, something seems to be going on. Of course, I don’t have data on whether Nichols’s, McFadden’s or Chutkan’s sentencing proclivities in the Jan. 6 cases are out of alignment with their propensities in non-Capitol riot cases.
But even assuming that there’s some party-line cleavage in the sentences of the Jan. 6 defendants, it’s important to keep that disparity in perspective. Given that the sentences are mainly for Class B misdemeanors—which are so minor that the U.S. Sentencing Guidelines don’t even apply—the distinctions between what prosecutors have sought and what judges have meted out were not earth-shaking. The judges were faced with decisions like: Should the defendant get three months in jail or one month? Sixty days of home confinement plus probation, or just probation? Three years of probation or one year of probation?
There’s reason to be optimistic that as more felony cases begin reaching the sentencing phase, there will be less sentencing disparity. (Only about 10 percent of the 174 guilty pleas obtained at the time of the Post article were to felonies, according to the paper. In contrast, roughly 45 percent of the total 700-plus Capitol riot defendants accused in federal court so far—325 individuals, according to Attorney General Merrick Garland’s speech on Jan. 5—face at least one felony charge.)
There are two reasons for such optimism. First, the sentencing guidelines will apply in felony cases.
Second, and more important, it’s hard to imagine judges showing wide disagreement about how to punish crimes like, say, assaulting police officers—a charge that more than 225 Capitol riot defendants face.
Optimists—those who hope that federal district judges will transcend partisanship in the Jan. 6 cases—already have an Exhibit A to point to in support of their idealism. By far the weightiest issue the judges have wrestled with to date is whether the Justice Department is properly invoking its go-to felony charge: corruptly obstructing a congressional proceeding (18 U.S.C. § 1512(c)(2)). Prosecutors have charged that offense in at least 275 cases—nearly 40 percent of the total and 85 percent of all felony cases.
Early on, before that issue had been briefed, two judges (both appointed by Democrats) had expressed concern that the department’s use of the charge—originally enacted as part of the Sarbanes-Oxley Act of 2002 and never before used in a context anything like this one—raised serious statutory and due process issues.
Yet over the past two months, at least five judges have finally ruled on this important question—including two Trump appointees—and all have ruled for the Department of Justice, including the two original doubters. The rulings, in chronological order, were by Trump-appointee Dabney Friedrich, Obama-appointee Amit Mehta, Obama-appointee James Boasberg, Trump-appointee Timothy Kelly and Obama-appointee Randolph Moss. (Boasberg’s political affiliation may require an asterisk. Before joining the federal bench, he served on the D.C. Superior Court as a President George W. Bush appointee.) That unanimity is resounding, impressive and heartening.
Also encouraging is the judges’ performance on another politically sensitive issue—though here the situation is not as open and shut.
A number of Jan. 6 defendants have raised “selective prosecution” claims, alleging that the Democratic administration, because of political bias, is treating Capitol rioters more harshly than “similarly situated” rioters who staged violent protests outside the U.S. courthouse in Portland, Oregon, in 2020 in the wake of George Floyd’s murder. (The Portland riots were at night, when the building was not open, and caused about $50,000 in property damage, compared to about $1.5 million at the Capitol.)
Two Trump appointees have each recently rebuffed defendants’ motions seeking targeted discovery to pursue such claims—though one did so far more grudgingly than the other. (I’m not aware of any Democratic appointees who have yet ruled on one of these motions.)
The main basis for both motions was that 39 of 74 defendants charged in the Portland riots ultimately had their cases dismissed or resolved through deferred prosecution agreements or very lenient plea deals. Most of these dismissals took place after the Biden administration took office, though docket sheets suggest that, in many cases, plea negotiations began before the election.
U.S. District Judge Carl Nichols gave the selective prosecution motion raised before him—by Capitol riot defendant Garret Miller—the back of his hand. (Miller, a Dallas man, is charged with, among other things, assaulting and impeding federal law enforcement officers, obstructing an official proceeding, and urging the assassination and lynching, respectively, of Rep. Alexandria Ocasio-Cortez and the Capitol Police officer who shot rioter Ashli Babbitt.)
The Portland rioters’ conduct, while obviously serious, did not target a proceeding prescribed by the Constitution and established to ensure a peaceful transition of power. Nor did the Portland rioters, unlike those who assailed America’s Capitol in 2021, make it past the buildings’ outer defenses.
Judge Nichols also credited the Justice Department’s argument that the evidence was often much weaker in the Portland cases—a circumstance that could easily explain their lenient resolutions.
The January 6 attack happened in broad daylight, and much of what occurred was captured on video (whether from the Capitol [surveillance cameras], [body worn cameras on] law enforcement officers, or the rioters themselves). In Portland, much of the illegal activity occurred at night and there is substantially less video evidence of what unfolded during the assault.
Though the other Trump appointee, Judge McFadden, came out the same way as Judge Nichols, he found the issue a much closer call. One might have predicted as much, given that McFadden had already drawn press attention last October when he opined on a similar issue during a misdemeanor sentencing. He had commented then: “I think the U.S. attorney would have more credibility if it was even-handed in its concern about riots and mobs in this city.” McFadden’s observation ran contrary to an AP analysis last August, which found little basis for such a claim, and was later criticized by Judge Chutkan, who called the comparison a “false equivalence.”
The selective prosecution claim McFadden ruled on in December had been filed by defendant David Lee Judd, a 35-year-old Dallas man. Judd was allegedly captured on multiple videos participating in violent confrontations with police officers for more than an hour at the tunnel archway on the Capitol’s lower West Terrace. Judd allegedly participated in two coordinated, “heave-ho,” shoving onslaughts, attempting to break through the officers’ defensive line; helped pass stolen police riot shields to the front of the confrontation to be used as weapons against the officers; and threw a lit firecracker at the officers, though it failed to detonate.
Judge McFadden found Judd’s claims of disparity between the handling of his case and those of the Portland rioters “nontrivial,” “suspicious,” and “troubling.” He was skeptical of the government’s argument that weaker evidence in the Portland cases could account for the greater leniency there. Weak evidence,
could explain why fewer defendants overall were charged in Portland than here. But by indicting those cases, the Portland prosecutors presumably believed they had sufficient evidence to sustain convictions.
Nevertheless, McFadden did go on to reject Judd’s motion, reasoning—as Nichols had—that, in the end, the circumstances were not sufficiently comparable.
Putting aside any claims that January 6 rioters sought to tear down our system of government (an allegation not made against Judd), their actions endangered hundreds of federal officials in the Capitol complex. Members of Congress cowered under chairs while staffers blockaded themselves in offices, fearing physical attacks from the rioters. The action in Portland, though destructive and ominous, caused no similar threat to civilians.
So, net-net, these two rulings might be scored as additional evidence that judges are transcending political stereotypes. But the truth is more complicated. Apparently clinging tightly to his suspicions of politically inspired disparate treatment, McFadden suggested in his ruling that he might yet consider lightening Judd’s sentence if the case ever reaches that stage. “Disparate charging decisions in similar circumstances may be relevant at sentencing,” McFadden wrote, quoting his own July 2021 order in a misdemeanor case.
Finally, some mild tribalism was apparent in the most important appellate case to arise from the Capitol riot so far. This was the appeal by Eric Munchel, a 30-year-old man from Nashville, Tennessee, of the decision by Chief Judge Beryl Howell to deny him bail on the grounds of “dangerousness.” (The case has since become the touchstone precedent for bail decisions in these cases.)
Though not a household name, Munchel is famous visually. He’s the guy who was photographed in the gallery of the Senate in a tactical vest, a black balaclava concealing his face, a holstered Taser at his waist, and holding a sheaf of “zip ties.” Despite Munchel’s menacing appearance, however, the government has not alleged that he committed any violence or vandalism that day.
Munchel’s appeal, decided in the U.S. Court of Appeals for the D.C. Circuit in March 2021, seemed to present an easy opportunity for a unanimous ruling, since all three appellate judges agreed that Chief Judge Howell had overstepped. Nevertheless, the panel split along party lines.
The majority, Judges Robert Wilkins (an Obama appointee) and Judith Rogers (a Clinton appointee), voted to remand for reconsideration—an unambiguous signal for Howell to order Munchel’s release (which she promptly did). The ruling, authored by Wilkins, drew a clear and practical line for district judges to follow in making future pretrial detention rulings.
In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.
The third circuit judge on the panel, Trump-appointee Gregory Katsas, agreed with this much, and concurred in that part of the ruling. (Katsas was a deputy White House counsel during the Trump administration and head of the Department of Justice’s Civil Division under George W. Bush.)
Nevertheless, Katsas did not leave it at that. Instead, he issued a full dissent, urging outright reversal of Howell’s order—not mere remand. Seemingly belittling the seriousness of Munchel’s crime—charging into the Senate gallery with a weapon as part of a mob disrupting the certification of a presidential election—Katsas wrote that Munchel’s conduct “hardly threatened to topple the republic.” He also stressed that “the transition [had] come and gone and the threat has long passed”—a sanguine view of last January’s historic, nonpeaceful transition of power.
Though it’s speculation on my part, I can’t help but wonder if Katsas’s dissent was a rejoinder of sorts to the majority’s use of the word “insurrection” (twice) to describe the event Munchel participated in—a fighting word for many conservatives.
In any case, in the months ahead some issues raised in these politically fraught cases are likely to reach the U.S. Supreme Court. The propriety of the “corruptly obstructing an official proceeding” charge will almost certainly get there. Some nontrivial speedy trial issues are brewing, too, as prosecutors struggle to make terabytes of discoverable video footage available to hundreds of defendants, some of whom have now been detained for more than a year. Other defendants are claiming that they cannot receive a fair trial in the District of Columbia, given alleged jury pool bias against rioters, Trump and Trump supporters. Lastly, if Trump himself is ever charged criminally in connection with Jan. 6, virtually every dispute raised in such a prosecution would take on landmark dimensions.
Judges and justices grappling with these issues should therefore be striving to present a unified front. They should not be looking to throw bones to their side of the ever-widening Great Ideological Divide.