Riot prosecution said to stir debate

Officials weigh not charging some who entered Capitol

WASHINGTON — Federal law enforcement officials are said to be privately debating whether they should decline to charge some of the people who stormed the U.S. Capitol this month — a politically loaded proposition but one that takes into account the practical concern that hundreds of such cases could swamp the courts.

The internal discussions are in their early stages, and no decisions have been reached about whether to forgo charging some of those who illegally entered the Capitol on Jan. 6, according to multiple people familiar with the discussions.

Justice Department officials have promised a relentless effort to identify and arrest those who stormed the Capitol that day, but internally there is robust back-and-forth about whether charging them all is the best course of action. That debate comes at a time when officials are keenly aware that the credibility of the Justice Department and the FBI are at stake in such decisions, given the apparent security and intelligence failures that preceded the riot, these people said, speaking on the condition of anonymity to discuss legal deliberations.

Federal officials estimate that roughly 800 people surged into the building, though they caution that such numbers are imprecise, and the real figure could be 100 people or more in either direction.

Among those roughly 800 people, FBI agents and prosecutors have seen a broad mix of behavior — people dressed for battle, those who engaged in wanton vandalism, and those who simply went with the crowd into the building.

With the wide variety of behavior, some federal officials have argued internally that those people who are known only to have committed unlawful entry — and were not engaged in violent, threatening or destructive behavior — should not be charged, according to people familiar with the discussions.

Other agents and prosecutors have pushed back against that suggestion, arguing that it is important to send a forceful message that the kind of political violence and mayhem on display Jan. 6 needs to be punished to the full extent of the law, so as to discourage similar conduct in the future.

There are a host of other factors complicating the discussions, many of which center not on the politics of the riot, but on the real-world work of investigators and prosecutors, these people said.

The Justice Department has already charged more than 135 individuals with committing crimes in or around the Capitol building, and many more are expected to be charged in the coming weeks and months. By mid-January, the FBI had already received more than 200,000 tips from the public about the riot, in addition to news footage and police officer testimony.

The primary objective for authorities is to determine which people, if any, planned, orchestrated or directed the violence. To that end, the FBI has already found worrying links within such extremist groups as the Proud Boys, Oath Keepers, and Three Percenters, and it is looking to see whether those groups coordinated with one another to storm the building, according to people familiar with the investigation.

Prosecutors have signaled they are looking to bring charges of seditious conspiracy against anyone who planned and carried out violence aimed at the government — a charge that carries a maximum possible prison sentence of 20 years.

But even as Justice Department officials look to bring those types of cases, they privately acknowledge that those more determined and dangerous individuals may have operated within a broader sea of people who rushed through the doors but didn’t do much else, and prosecutors will ultimately have to decide if all of those lesser offenders should be charged.

There is also a question of whether charging all of the rioters could swamp the federal court system. In 2019, federal courts in Washington, D.C., recorded only about 430 criminal cases. The number was fewer than 300 last year, when the legal system slowed significantly because of the pandemic. Many of those cases, however, had multiple defendants.

The workload of prosecuting the rioters could be eased if some of the cases were farmed out to other U.S. attorney offices around the country, but so far District of Columbia prosecutors have shown no interest in doing so. The law generally requires that people be prosecuted in the district in which a crime occurred.

Due to the wide variety of behavior, some federal officials have argued internally that those people who are known only to have committed unlawful entry — and were not engaged in violent, threatening or destructive behavior — should not be charged, according to people familiar with the discussions.