Published by The Lawfare Institute
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As the first anniversary of the Jan. 6 siege of the Capitol approaches, the work of the congressional committee investigating the attack continues to dominate the headlines. The congressional inquiry is important for the American people to understand the causes and mechanics of the attack, but the congressional process is inherently political and has little effect on the Jan. 6 attackers themselves.
In contrast, two blocks down the aptly named Constitution Avenue, 19 federal judges of the U.S. District Court for the District of Columbia are meting out justice with much less fanfare and in an apolitical way to the more than 725 Capitol rioters who have been charged so far with federal crimes. The judges, appointed by both Republican and Democratic presidents, have already accepted pleas from 165 defendants and have imposed more than 70 sentences. They deserve recognition for the substantial additional caseloads they are shouldering, for their fair and nonpartisan approach (in the face of public threats) to these highly politicized cases and for the reprimands they have delivered to the defendants at sentencing.
Department of Justice officials have said that “The investigation and prosecution of the Capitol Breach will be the largest in American history, both in terms of the number of defendants prosecuted and the nature and volume of the evidence.” Assisted by tips from the American public, federal prosecutors continue to charge more defendants every week. On December 30, the U.S. Attorney’s Office for the District of Columbia released a breakdown of the criminal charges and sentences so far. In addition to the 725 defendants already charged, the FBI is seeking to identify more than 350 additional individuals who committed violent acts on the Capitol grounds, including 250 who assaulted police officers. The total number of defendants may ultimately exceed 1,000.
The cases are being handled so far by 12 of the 14 active judges from the D.C. District Court (the two most recent Biden appointees have not yet begun to hear criminal cases) and seven senior judges. On average, each judge has been assigned more than 35 Jan. 6 cases so far, with some active judges having considerably more. This is a substantial additional workload for the judges who also continue to handle their regular criminal and civil dockets.
Despite the gravity of the Jan. 6 assault, the government has charged most of the participants with misdemeanors punishable by less than one year in jail, such as entering a restricted building and entering and remaining on the floor of Congress. The majority of the 165 rioters who have entered into plea agreements have pleaded guilty to the Class B misdemeanor charge of “parading, demonstrating, or picketing” in a Capitol building and have been sentenced to probation, community service and restitution. Several have been sentenced to up to 60 days in jail.
More than 275 individuals have also been charged with felonies, more serious offenses punishable by more than a year in prison, such as assaulting law enforcement officers, obstructing an official proceeding and destruction or theft of government property. Defendants who have pleaded guilty to felonies have been sentenced to three to five years in jail. Federal prosecutors have also filed more serious felony charges against several far-right groups, including the Oath Keepers and the Proud Boys. These cases will be heard in 2022 and will shed more light on the conspiracy to attack the Capitol.
So far, no one has been charged with sedition or insurrection, although prosecutors have considered these charges. An organized attack on Congress would seem to fit the popular definition of an insurrection, but the charge is very rarely brought and Attorney General Merrick Garland (himself a former federal judge) has reportedly opposed bringing novel charges that might not hold up in court. Sticking with more pedestrian charges is prudent, even if they do not seem commensurate with the magnitude of the Capitol assault.
Several judges have expressed dissatisfaction with the Justice Department’s leniency. Chief Judge Beryl Howell asked during a sentencing hearing whether misdemeanor charges recommended by prosecutors were appropriate for “the crime of the century.” And Judge Emmet Sullivan questioned why prosecutors had agreed to accept a misdemeanor plea from a rioter who had said, “We were looking for Nancy to shoot her in the friggin’ brain.” Sullivan said: “It’s very troubling to hear someone say the reason they entered the Capitol on January 6 was essentially to murder the Speaker of the House.”
For defendants who have agreed to plead guilty, federal prosecutors have recommended punishments of varying degrees of severity based on nine factors, including whether the defendants engaged in acts of violence, cooperated with law enforcement and showed remorse for their actions. Judges have tried to ensure consistency of punishments for rioters who engaged in similar behavior on Jan. 6, but they have often departed from prosecutors’ recommendations, handing down sentences that have been either more or less severe. Judge Tanya Chutkan, an Obama appointee and former public defender, has sentenced four rioters to jail despite prosecutors’ recommendations of probation. Judge Royce Lamberth, a Reagan appointee, sentenced a defendant who had chartered buses of Capitol rioters to 60 days in jail and a $5,000 fine, even though prosecutors had asked for 14 days and no fine. In at least 17 other cases, judges (both Republican and Democratic appointees) have sentenced defendants to less jail time than prosecutors recommended or imposed home detention or probation rather than incarceration.
Judges have delivered stern reprimands to the rioters in plea and sentencing hearings. Judge Amy Berman Jackson rejected the argument that rioters were “patriots,” saying that “[p]atriotism is loyalty to country, loyalty to the Constitution, not loyalty to a head of state.” Judge Christopher Cooper told a defendant who had tweeted that she was “definitely not going to jail” because she had “blonde hair white skin” that her sentence needed to demonstrate that the Capitol siege was “an assault on our democracy…and that it should never happen again.” He sentenced her to 60 days in jail. And Judge Chutkan, in imposing sentences of 20 and 14 days in jail on an Ohio couple who had crawled into the Capitol through a broken window, said: “The country is watching. There have to be consequences for participating in the attempted overthrow of the government.”
Judges appointed by Republican presidents have shown no (or little) more sympathy to the defendants. Judges Dabney Friedrich and Tim Kelly, both appointed by Donald Trump, have rejected arguments by two members of the Proud Boys that the vote certification was not an “official proceeding” covered by the felony obstruction statute. Judge Trevor McFadden, also a Trump appointee, lectured another defendant: “You participated in a shameful event, a national embarrassment.” And Judge Reggie Walton, a George W. Bush appointee, scolded another: “You’ve disgraced this country in the eyes of the world and I find it outrageous that American citizens would act as you did. My inclination would be to lock you up, but since the government isn’t asking me to do it … I won’t.”
Several judges have expressed concern that despite statements of remorse at sentencing, many of the Jan. 6 participants have continued to publicly defend their actions and to foment hostility toward the government and the judiciary. During the sentencing of a defendant who claimed to be an “accidental tourist” in the Capitol, Judge Thomas Hogan, a Reagan appointee, said, “It’s become evident to me that many of the defendants pleading guilty do not truly accept responsibility.” To another rioter who had given interviews saying she had “done nothing wrong” and “would do it again tomorrow,” Judge Walton said, “I know that these types of comments have an impact …. As judges, we’re getting all kinds of threats and hostile phone calls when we have these cases before us, because there are unfortunately other people out there who buy in on this proposition, even though there was no proof, that somehow the election was fraudulent.”
Several years ago, in response to a Twitter attack by President Trump decrying the federal judge who had struck down the Trump administration’s asylum restrictions as an “Obama judge,” Chief Justice John Roberts famously stated: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” The work of the D.C. District Court judges hearing the Jan. 6 cases is tangible proof of the chief justice’s words and the embodiment of the rule of law.