San Antonio Express-News (Sunday)
Feds debate not charging some rioters
WASHINGTON — Federal law enforcement officials are privately debating whether they should decline to charge some of the individuals who stormed the U.S. Capitol this month — a politically loaded proposition but one alert to the practical concern that hundreds of such cases could swamp the local courthouse.
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 backand-forth about whether charging them all is the best course of action. That debate comes at a time when officials are keenly sensitive 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 so far seen a broad mix of behavior — from people dressed for military battle, moving in formation, to wanton vandalism, to simply going with the crowd into the building.
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.
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.
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 individuals, if any, planned, orchestrated or directed the violence. To that end, the FBI has already found worrying linkages within such extremist groups as the Proud Boys, Oath Keepers, and Three Percenters, and is looking to see if those groups coordinated with each other 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 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.
“If an old man says all he did was walk in and no one tried to stop him, and he walked out and no one tried to stop him, and that’s all we know about what he did, that’s a case we may not win,” one official said.
Another official noted most of those arrested so far have no criminal records.
Meanwhile, defense lawyers for some of those charged are contemplating something akin to a “Trump defense” — that the president or other authority figures gave them permission or invited them to commit an otherwise illegal act.
Trump’s looming impeachment trial in the Senate will also focus further attention on his actions and raise questions about the culpability of followers for the misinformation spread by leaders around bogus election-fraud claims rejected by courts and state voting officials.
“It’s not a like a bunch of people gathered on their own and decided to do this, it’s not like a mob. It’s people who were asked to come by the president, encouraged to come by the president, and encouraged to do what they did by the president and a number of others,” said one attorney representing defendants charged in the breach who spoke on the condition of anonymity to discuss legal strategy.
Prosecutors have other options. For rioters with no previous criminal records or convictions and whose known behavior inside the Capitol was not violent or destructive, the government could enter into deferred plea agreements, a diversion program akin to pretrial probation in which prosecutors agree to drop charges if a defendant commits no offenses over a certain time period.
Such a resolution would not result in even a misdemeanor conviction, and has been used before in some cases involving individuals with a history of mental illness who were arrested for jumping the White House fence. Criminal defense attorneys note there may be further distinctions between individuals who may have witnessed illegal activity or otherwise had reason to know they were entering a restricted area, and those for whom prosecutors can’t show such awareness.