How trials are being run for those unlawfully entering the Capitol

The Justice Department wants to make a firm statement about the Jan. 6 Capitol riot, which was a national disgrace. But as the criminal cases make their way through the courts, there are signs of prosecutorial overreach.

Last week District Judge Amit Mehta threatened to issue a gag order after one Justice Department official gave an interview to CBS about cases, and others floated the possibility of sedition charges to the New York Times. The judge, who was appointed by President Obama, summoned a hearing "to make clear to everyone that this case will not be tried in the media." He said government leaks "have the potential of affecting the jury pool and the rights of these defendants."

Other judges are starting to question the government's heavyhanded approach to defendants charged with unlawfully entering the Capitol but not attacking police or destroying property. Politico reported Tuesday that "at least five Jan. 6 defendants were released in recent days over prosecutors' objections."

The D.C. Circuit Court of Appeals on Friday clarified that the political significance of the Capitol riot does not supersede defendants' right to due process. "We have a grave constitutional obligation to ensure that the facts and circumstances of each case warrant this exceptional treatment," the court held in ordering a lower court to reconsider the detention of two defendants awaiting trial.

The third judge on the panel, Gregory Katsas, went further in a partial concurrence: "The district court described the charged offenses as 'grave,' asserted that 'few offenses are more threatening to our way of life,' and quoted at length from George Washington's Farewell Address. But none of the charged offenses is a Class A or Class B felony."

There's bipartisan agreement that events like the Capitol riots must be vigorously deterred. But if the Justice Department fails to look at cases individually and instead lets itself get swept up in a politicized narrative about a battle for democracy, it will further damage the legitimacy that democracy depends on.