Many of the people that stormed the U.S. Capitol building on Jan. 6 will face only minor penalties.
“Although prosecutors have loaded up their charging documents with language about the existential threat of the insurrection to the republic, the actions of many of the individual rioters often boiled down to trespassing,” Politico reported. “And judges have wrestled with how aggressively to lump those cases in with those of the more sinister suspects.”
Of more than 230 defendants charged so far, almost a quarter are only facing misdemeanor charges. Meanwhile, dozens more of those arrested are awaiting charges as the low-level cases continue to clog Washington’s federal district court, according to the media outlet’s analysis.
Many of the participants are now likely to be grouped together to face trespassing charges, a misdemeanor that federal sentencing guidelines say carries a zero- to six-month prison sentence.
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“Trespass is as mild as we get. … There’s really no way in which you can cook the books, or the guidelines, to do above zero to six,” said Ohio State University law professor Douglas Berman. “This is a case where the aggravating factors are not built into the book.”
While much of the media and political attention has been paid to higher-level conspirators such as members of the Proud Boys and the Oath Keepers, prosecutors have begun to indicate that many of the defendants involved in the riot are unlikely to face stiff penalties.
“My bet is a lot of these cases will get resolved and probably without prison time or jail time,” former public defender and current Georgetown law professor Erica Hashimoto said. “One of the core values of this country is that we can protest if we disagree with our government. Of course, some protests involve criminal acts, but as long as the people who are trying to express their view do not engage in violence, misdemeanors may be more appropriate than felonies.”
The reality could prove to be embarrassing to the Biden administration, with President Joe Biden saying that the rioters’ actions bordered “on sedition,” while Attorney General Merrick Garland called the riot “a heinous attack that sought to disrupt a cornerstone of our democracy, the peaceful transfer of power to a newly elected government” and promised to make prosecuting participants one of his top priorities.
“Justice Department prosecutors sent expectations sky-high in early statements and court filings, describing elaborate plots to murder lawmakers — descriptions prosecutors have tempered as new details emerged,” Politico reported.
Now, prosecutors will be “wrist-slapping many participants” after originally characterizing their actions as “a grave threat to American democracy.”
The realization also comes after former President Donald Trump suggested in an interview that too much was being made of the riot by prosecutors and the FBI.
“It was zero threat. Right from the start, it was zero threat,” Trump said during an interview with Fox News’s Laura Ingraham Thursday. “Look, they went in — they shouldn’t have done it — some of them went in, and they’re hugging and kissing the police and the guards, you know? They had great relationships. A lot of the people were waved in, and then, they walked in, and they walked out.”
Trump was impeached by the House over accusations that he incited the riot, though he was later acquitted of the charges in the Senate.
Many judges hearing the cases seemingly agree with the former president’s assessment, with some pressuring prosecutors to “back up their tough talk about sedition or put a lid on it.”
“The punishment has to be proportional to the harm, but I think for many of us, we’ll never forget watching TV Jan. 6 and seeing people wilding out in the Capitol,” noted former federal prosecutor Paul Butler. “Everybody who was there was complicit, but they’re not all complicit to the same degree for the same harm.”
While the standard set of four misdemeanors that prosecutors have filed against many of the participants does carry a possible three-year prison sentence, Butler said that such a punishment is unlikely for most of the defendants.
“Nobody goes to jail for a first or second misdemeanor,” Butler said.
A defense lawyer, who said many in the court system are referring to the participants as “MAGA tourists,” said most of the defendants are “almost certain” to avoid serving prison time.
“What about somebody who has no criminal record who got jazzed up by the president, walked in, spends 15 minutes in Statuary Hall, and leaves? What happens to that person? They’re not going to get a jail sentence for that,” said the defense attorney, who asked not to be named.
“There is a natural cycle to an event like this,” the lawyer continued. “People will say it was the end of the world, then things will calm down, and they’ll begin looking at cases back on what people actually did.”
Prosecutors face even more pressure to sort through the most serious offenders and offer plea deals to low-level defendants, with D.C. Circuit Judge Robert Wilkins telling prosecutors that there is a difference between violent offenders and people who just walked in as the chaos erupted.
“Two individuals who did not engage in any violence and who were not involved in planning or coordinating the activities seemingly would have posed little threat,” Wilkins said.
Wilkins’s warning has been seen by some legal experts as a sign of most judges’ increased impatience with the cases.
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“The judges are going to start to have had enough of this,” the defense attorney said. “At a certain point, they’re going to start making them do deals in these cases.”
