The Dallas Morning News

Jan. 6 investigat­ions prove to be lengthy process

Officials work to manage strain of the complicate­d cases


The city’s federal court system is bracing for many more years of trials stemming from the Jan. 6, 2021, riot at the U.S. Capitol, with new charges possible against as many as 1,000 more people.

In recent months, law enforcemen­t and judicial authoritie­s have engaged in discussion­s to manage the huge volume of Jan. 6 cases without overwhelmi­ng the courthouse where pleas and trials are held, people familiar with the matter said, speaking on the condition of anonymity to discuss internal operations.

“It’s an enormous, enormous case and, by almost any measure, the largest case the Justice Department has ever had,” said Randall Eliason, a former federal prosecutor who now teaches law at George Washington University. “Big criminal investigat­ions that are far less complicate­d than this often take several years.”

Eliason said that while the riot cases may be about halfway over, there are indication­s some of the other branches of the investigat­ion — like the false electors scheme or efforts to use Justice Department officials to undo the election results — appear to be further along, because the witnesses now being subpoenaed include some of the most thorny legal matters and the people closest to former President Donald Trump. Those are generally indicators that an investigat­ion is nearing the end of the factgather­ing phase, he said.

“There are a lot of court fights over privilege, and those take time, and you can’t just plow past them and not try to get critical evidence,” Eliason said.

Road so far

Prosecutor­s are hopeful many will be incentiviz­ed to plead to help manage the crush of cases, which already have strained the court in the nation’s capital. A Washington Post analysis of the cases so far shows defendants who seek a trial rather than plead guilty end up getting about a year of prison time added to their sentences.

To date, roughly 1,000 people have been arrested for their alleged roles in the events of that day. In late October, when the Justice Department had already charged nearly 900 individual­s for alleged crimes surroundin­g Jan. 6, the U.S. attorney for the District, Matthew Graves, wrote to court officials alerting them that an additional 700 to 1,200 people may be charged.

That means prosecutor­s expect that the total number of people charged with crimes related to Jan. 6 may be somewhere between 1,600 and 2,100 people, according to people familiar with the letter. The letter was first reported by Bloomberg News.

That calculatio­n does not include what, if any, charges result from the federal special counsel investigat­ion into activities surroundin­g Trump allies’ efforts to use fake electors or other subterfuge to undo Joe Biden’s 2020 presidenti­al victory.

As of Wednesday, judges had sentenced 408 Jan. 6 defendants, but only 88 of those were for felonies, mostly for one of two charges: obstructio­n of an official proceeding or assault on law enforcemen­t.

Defendants who pleaded guilty to assaulting the police have received an average sentence about 13 months lower than those convicted at trial, in part because their sentences were reduced when they received credit for accepting responsibi­lity for their actions.

It is common in the federal court system for defendants who take their cases to trial to end up, if convicted, with significan­tly longer prison sentences as a result — a dynamic often referred to by lawyers as the “trial penalty.” Typically, federal prosecutor­s offer to recommend a lower prison sentence if defendants agree to plead guilty and save the court system the time and expense of a trial.

The five Jan. 6 defendants who have been convicted at trial of assaulting police have received an average sentence of more than four and a half years in prison.

Defendants convicted at trial of obstructin­g an official proceeding have earned an average sentence nearly 19 months higher than those who pleaded guilty to the same charge. This has occurred even as the judges in federal district court in D.C. have gone below the sentencing guidelines in 14 of the 17 trial conviction­s, and below the government’s recommende­d sentence in all 17 cases. The dozen defendants who have been convicted at trials of obstructin­g an official proceeding have been sentenced to an average of almost four years in prison.

What’s still unclear is how many of the additional suspects will face misdemeano­r versus felony cases, though prosecutor­s have warned judges that the percentage of newly charged cases that will be felonies is likely to increase as investigat­ors pursue more serious accusation­s. So far, about half of the cases have involved at least one felony, and half have charged only misdemeano­rs.

In follow-up discussion­s after Graves sent the letter, prosecutor­s said they would not ramp up the pace of arrests in a way that would swamp the already strained federal courthouse where the cases are being heard, according to people familiar with the matter.

Prosecutor­s in the letter also said they would update estimated numbers if resources and circumstan­ces changed.

FBI officials have previously notified Congress that “approximat­ely 2,000 individual­s are believed to have been involved with the siege” of the U.S. Capitol, though it was unclear at the time from that statement whether that number of people would face criminal charges.

Work load

The prospect of another 1,000 cases has been a topic of discussion at the court for months, since the Justice Department received funding in October to hire scores of shortterm prosecutor­s. The concern has been whether the court could process the number of trials likely to result from so many cases.

Officials have already brought in more court reporters to handle the demands for courthouse transcript­s, but some officials still worry about the workload in the coming years.

Jay Town, a former U.S. attorney for northern Alabama, said it is hard on all parties to staff up for a “ton of cases.” But many of the Jan. 6 cases are not complex, he said, and prosecutor­s and judges by now are deeply familiar with the law and evidence, and that practice could speed prosecutio­ns going forward.

If anything, he said, it is harder for new defense attorneys to “start from scratch” and review the mountains of evidence from that day. “There was nothing patriotic about January 6, and so to think you’re continuing your patriotism by being willing to endure a longer sentence, that’s not patriotic either,” he said.

Another factor that has led to possible court delays is a judge’s ruling in March 2022 that a felony charge used in many Jan. 6 cases — obstructin­g an official proceeding — could not be applied to defendants unless they tampered with official documents or records.

While that ruling is an outlier so far at the courthouse, an appeal of the issue is still pending, and roughly 160 of the people originally charged with that crime are waiting to see how the higher court rules before pleading guilty or resolving their cases. Whenever the appeals court rules, the issue could still wind up before the Supreme Court, which could mean more delays.

Generally, more than 90% of federal criminal cases end in guilty pleas without a trial, past studies have shown. To date, all of the Jan. 6 defendants who have chosen to go to trial have been convicted of something.

 ?? 2021 File Photo/The Associated Press ?? To date, roughly 1,000 people have been arrested for their alleged roles in the events of the Jan. 6, 2021, riot at the U.S. Capitol.
2021 File Photo/The Associated Press To date, roughly 1,000 people have been arrested for their alleged roles in the events of the Jan. 6, 2021, riot at the U.S. Capitol.

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