The DOJ's Promised Probe Into Capitol Riot Raises Alarm About Prosecutorial Overreach

At least 170 people are currently under investigation in connection to the January 6 assault on the U.S. Capitol, and officials expect that number to “grow to the hundreds in the next coming weeks” — a criminal probe that the top federal prosecutor in Washington, D.C., has described as “unprecedented, not only in FBI history, but probably DOJ history.”

Some 111 people were arrested or charged for actions connected to the Capitol siege as of Thursday morning, according to the Prosecution Project, an open-source research platform that monitors criminal cases involving political violence. Acting U.S. Attorney for the District of Columbia Michael Sherwin said that prosecutors were considering a growing set of charges against those involved in the riot. He said that the crimes they could be accused of span from the relatively minor trespassing dozens of people have already been charged with; to theft of mail, digital devices, and possibly national security information from the Capitol; and up to assault of a law enforcement officer, seditious conspiracy, and felony murder. “The gamut of cases and criminal conduct we’re looking at is really mind-blowing and that has really put an enormous amount of work on the plate of the FBI and field offices throughout the entire United States,” Sherwin said at a press conference this week, warning that the cases could take years to prosecute. “This is only the beginning.”

Held nearly a week after the attack on the Capitol, the briefing by Sherwin and Steven D’Antuono, the assistant director in charge for the FBI’s Washington, D.C., office, was the first major update on the status of an investigation occupying hundreds of law enforcement agents and prosecutors nationwide and that has already turned up more than 100,000 pieces of digital media evidence. Lawmakers and other officials have also called for separate investigations to shed light on a historic breach of the Capitol that remains largely unexplained. After the U.S. Capitol police and law enforcement agencies across the district were caught woefully unprepared for last week’s assault, Tuesday’s briefing sought to address criticism that the FBI and the Department of Justice were too slow to respond with arrests and charges. And it came as critics were contrasting the kid-glove police response and relatively minor charges filed to date against the rioters to the treatment of Black Lives Matter and other protesters who have been violently arrested and harshly prosecuted for years.

Amid warnings of more violence to come in the next days and conflicting calls for unity versus accountability, the country is bracing for what will likely be a yearslong effort to investigate and prosecute those responsible for the January 6 attack, harrowing details of which continue to emerge more than a week later. But many who have pointed to the glaring inequities in law enforcement’s response to the Capitol assault as compared to recent racial justice or anti-Trump protests have also warned against calls for mass conspiracy prosecutions or any expansions of law enforcement resources, civil rights erosions, and domestic terrorism and anti-protest laws. Such measures, they said, will inevitably be turned against people of color and government critics legitimately expressing their dissent. As they grappled with the question of how the justice system can meaningfully address the dramatic surge in far-right and white supremacist extremism in this country, many cautioned that accountability is better sought from those who enabled and coordinated its rise, rather than through the mass criminalization of all who embraced it.

“I don’t see how we can prosecute or jail our way out of a burgeoning fascist movement in the United States,” Thomas Harvey, justice project director at the civil rights group Advancement Project, told The Intercept. “That’s going to take a lot more effort, and I think some of the accountability that we’ll be talking about is going to happen politically.”

Harvey and several others warned against responding to the attack with “knee-jerk” calls for expanded law enforcement powers and overly broad prosecutions. “We have a strong desire for punishment and retribution in our society, and I don’t think people on the left are completely exempt from that,” he said. As for the mass prosecution of individuals who protested President Donald Trump’s inauguration and others charged during last summer’s unrest, Harvey said, “I understand the desire to see that equivalence, but what we want is for the people who were involved in the J20 protests and people who went out to exercise their First Amendment rights after the George Floyd uprising and who were met with extreme police violence, we want those cases to be dismissed. We don’t want more punishment for people who came out on January 6 as some kind of offset.”

Uneven Response

The Prosecution Project’s records, which track federal charges as well as those filed in D.C.’s District Court, show that many of the 112 cases filed in connection with the storming of the Capitol involve relatively minor misdemeanors. In D.C.’s District Court, 33 people have been charged with unlawful entry and 26 with curfew violations, which carry monetary fines or less than a year in jail. Ten people were also charged locally with firearms-related crimes for carrying weapons, which is illegal in the district. Some 30 people are facing federal cases charges so far, including for violent entry and disorderly conduct on Capitol grounds and for stealing public property. So far, no one appears to have been charged with the more serious crimes prosecutors said they intend to pursue, including conspiracy and sedition. None of those who spoke at a rally held hours before the assault were charged. And no one appears to have been charged with terrorism-related charges, or in connection with the five deaths that happened during the riot, including that of Capitol police officer Brian Sicknick.

It is common for prosecutors to bring additional, more severe charges weeks or even months into an investigation, and Sherwin explained that prosecutors working the case looked for “the most simple charge we could file as quick as possible.” Some of those arrested early on have already had additional charges filed against them. Richard Barnett, an Arkansas man who was photographed with his feet on House Speaker Nancy Pelosi’s desk, for instance, was at first charged with unlawful entry, disorderly conduct, and theft. But he was later charged with an additional count of carrying an unlawful weapon in a restricted area — a charge that could result in a 10-year sentence. Officials have all but promised that far more severe charges are coming for many of those with open cases and for others who are yet to be arrested.

Still, critics noted, the charges that were filed so far stand in stark contrast with those filed in recent years against protesters accused of far less severe conduct. They pointed to federal charges — including, in some cases, terrorism charges — filed against people protesting police brutality during last summer’s George Floyd demonstrations, many of whom were arrested on the scene and immediately charged with felonies like rioting. Combined with the fact that most of those who stormed the Capitol were able to leave the scene without being stopped by police — only a dozen people were arrested during the siege — the relatively minor charges filed so far against them speak to profound inequities in the ways law enforcement has long viewed political dissent and political violence depending on the race and beliefs of those behind it.

“There’s certainly a big discrepancy in the way past protesters have been arrested and so far prosecuted,” said Vida Johnson, an attorney and associate professor at Georgetown University Law Center, who has represented protesters charged in D.C. “Here we have a largely white, largely middle-class group of people who are being charged only with misdemeanors for their role in the violent breaking into the Congress, while it was in session, while congresspeople were carrying out their constitutional duties, and they are only charged with unlawful entry,” she said. Johnson added that she expects more charges to come later, but suggested that there was plenty of evidence for them to be filed sooner. “It seems like they could easily bring more significant charges now,” she said. “It’s hard to know what the reasoning for that might be other than what people are afraid of, which is that the U.S. attorney’s office has different priorities.”

Prosecutors regularly overcharge or stretch the scope of the law when accusing people of crimes — often in an effort to force plea agreements. Michael Loadenthal, founder and director of the Prosecution Project, noted that following the George Floyd protests, prosecutors seemed to be “bending over backwards” to charge protesters at the federal level over alleged crimes that would have normally been a matter for state courts. He cited the examples of a protester charged with federal interstate crimes for setting a New York police car on fire on the basis that New York police engage in interstate work, and of a protester charged with an interstate crime in Utah because the police car he damaged was manufactured in Canada and used on interstate highways. Loadenthal also cited the case of a Florida protester charged with crimes relating to interstate commerce for using as a weapon a bottle of Patron liquor imported from Mexico. “During the Floyd uprising, we saw a lot of this twisting or manipulation of the law in order to take what could have been a state charge and make it into a federal charge,” said Loadenthal, contrasting those charges with the ones filed so far in connection to the Capitol assault. “We’re not really seeing that here. We are seeing people charged with pretty low-level crimes.”

Loadenthal also contrasted the response to the Capitol riot with the treatment of the nearly 200 “J20” defendants, himself included. The group, which included journalists and legal observers, were arrested on January 20, 2017, the day of Trump’s inauguration; charged en masse with felony rioting, later upgraded to conspiracy; and threatened with decades in prison. Prosecutors in the case argued for a far-reaching notion of liability that essentially sought to hold dozens of people criminally responsible for crimes — like smashing the windows of several storefronts — that only a handful of them had carried out. The case ended in an embarrassing defeat for prosecutors, who after a series of mistrials and acquittals dropped all remaining charges in summer 2018. But the prosecutions upended dozens of people’s lives for more than a year and foreshadowed the crackdown on dissent that defined the Trump administration.

While the J20 protests and the storming of the Capitol were incidents of fundamentally different gravity, “the response to J20 was a hundredfold more potent that what appears to be happening so far with this,” said Philip Andonian, one of the defense attorneys on the J20 case. “It really highlights the disparities.”

Intelligence Failures

Since the attack, the FBI seems to have mostly focused on arresting people whose images inside the Capitol went viral, including several who were identified by activists online. So far, it appears that only one person was charged in connection to some of the worst violence that took place that day, including the brutal beatings of several police officers. The bureau has also announced a $50,000 reward for information leading to the identification of individuals who left pipe bombs on the scene, leaving the impression that law enforcement is scrambling to find the most violent individuals who were at the Capitol. “Those people are still out there,” Michael German, a former FBI agent and now fellow with the Brennan Center for Justice’s liberty and national security program, told The Intercept. “I would say that the people who are willing to use violence against the police would be the ones you would want to get in the bag quickest.”

The dearth of arrests in connection to the worst violence that took place at the Capitol raised fears about more to come in the next days, a possibility which the FBI has now warned all 50 states of. But officials also seem to be struggling to articulate a clear theory of what happened on January 6. “This is certainly different from the way they have mobilized in the past,” said Andonian, referring to prosecutors’ seemingly cautious approach. “It just makes you question, what is going on?”

While a full accounting of what went wrong will likely take months to emerge, there is no question the Capitol attack was the result of a colossal intelligence failure. Conflicting reports have emerged about what the FBI and other law enforcement agencies knew ahead of the riot; some officials are saying that the bureau had not issued any risk assessments, as it regularly does during protests, and others are reporting that warnings were raised before the riot. After the attack, hundreds of rampagers were able to leave — making it harder for prosecutors to prove whether they were armed or in possession of any stolen property, or to obtain private communications and records that rioters have now had plenty of time to destroy. The Capitol — effectively a crime scene — was quickly cleaned up.

“You had dozens of private citizens emailing the cops, calling for security on Twitter and other places leading up to January 6, but no indication that the actual security apparatus was paying any attention to what was an openly planned insurrection online,” said Sam Menefee-Libey, an activist with the group D.C. Legal Posse, which worked to support the J20 defendants.

He and others noted that the case against the J20 defendants was built in the months before the incidents in question took place. According to Andonian, law enforcement monitored the activities and conversations of a coalition of groups planning to protest the inauguration, and at least one individual working with far-right organization Project Veritas infiltrated the group. On Inauguration Day, protesters were met with a massive police response, arrested, and indiscriminately charged for simply being there. But Menefee-Libey said rather than once again mass prosecuting people, he hoped the Capitol incident would belatedly shift law enforcement’s focus to the threat posed by far-right and white supremacist extremism. “I do hope that they use this as an opportunity to develop a sophisticated intelligence map of the right-wing insurrectionists whom anti-fascists have been paying attention to for years and years,” he said, “and whom anti-fascists have already done a tremendous amount of work to identify online.”

But the growing threat posed by far-right extremist groups was hardly a secret before the Capitol assault. As The Intercept and others have reported many times, officials under multiple administrations have tried to repress reports about the rise of white supremacist groups, armed militias, and other far-right extremists. After coming under intense criticism in the last few years over its targeting of what it labeled “Black Identity Extremists,” the FBI has recently collapsed all identity-based and anti-government ideologies under broad umbrella categories, mixing nonexistent extremist groups with others posing tangible threats to public safety. The recategorization has made it virtually impossible for outsiders to monitor whether the bureau is putting its massive investigative resources toward the monitoring of anti-government militias, anti-fascist activists, white supremacists, or racial justice advocates. But it is clear that the sprawling and costly intelligence apparatus that was built in the aftermath of the 9/11 attacks failed to take seriously the most significant national security threat of the last several years.

German, who has written a number of reports warning of the threat posed by the same groups who stormed the Capitol, said he was surprised in 2017 that the FBI had seemed unaware of the individuals who rallied at the “Unite the Right” event in Charlottesville, Virginia, where a counterprotester was killed. Since then, German followed many of the same individuals as they showed up armed at rallies across the country, including several that turned violent. “How is it that police, and particularly the FBI, who tracks them interstate, didn’t understand this?” he asked. “I can’t understand how they were caught so off guard. … The violence hasn’t been hidden, it’s public. I don’t understand how they could have ignored it, except willfully.”

FBI Director Christopher Wray and other top officials have been largely silent since the Capitol riot. But at Tuesday’s press conference, D’Antuono, of the FBI’s D.C. field office, said that the bureau had spent the weeks before January 6 looking “for any intelligence that may have developed about potential violence during the rally.” Some of that intelligence led to the arrest, days before, of Proud Boys leader Enrique Tarrio. But, D’Antuono added, “we have to separate the aspirational from the intentional and determine which of the individuals saying despicable things on the internet are just practicing keyboard bravado or they actually have the intent to do harm.”

That’s hardly a courtesy the FBI has afforded to countless activists, protesters, and even legislative staff expressing different views, who have been surveilled and interrogated without a shred of evidence that they were committing crimes or posing threats to public safety. Instead, the impunity with which far-right extremists have been allowed to operate in recent years was on clear display at the Capitol, where many seemed under the belief that their actions were authorized by the president himself. “If the president of the United States is encouraging you to act this way, and the police don’t intervene when you commit violence against the president’s political enemies, then obviously, it’s authorized,” said German. “Which is why you had so many people willing to go up there without covering their faces: These people weren’t acting like burglars in the night, they were acting as if they had the full authority of the law.”

Justice vs. Vengeance  

There is no question that serious accountability is in order to shed light on the failures and complicity of a host of law enforcement agencies and elected officials in the months and years leading up to January 6. Civil rights advocates warn, however, that only some of that accountability can come through the courts.

Prosecutors now find themselves with the enormous responsibility of ensuring that there are consequences for unprecedented criminal conduct and a clear, if belated, message that such violence cannot be tolerated, even as it was directly called for by the president and effectively enabled by many elected officials. But the U.S. legal system already has all the laws, and prosecutors all the tools, needed to do that, civil rights advocates warn, without further infringing on civil liberties or stretching legal theories to punish more people than those who are responsible. “If this isn’t the right time to just call it for what it is and utilize the law that exists, I’m not sure where that line is,” Andonian, the J20 attorney, said, referring specifically to charges of conspiracy against those who instigated the attack.

This week’s briefing clearly signaled the Justice Department’s intent to make up for its failures by pursuing a hard line against those who stormed the Capitol. Sherwin said that his office had tasked a group of senior national security and public corruption prosecutors with the mammoth task ahead. “Their only marching orders from me are to build seditious and conspiracy charges related to the most heinous acts that occurred in the Capitol,” which he said could come with sentences of up to 20 years. “Regardless of if it was just a trespass in the Capitol or if someone planted a bomb,” he added, “you will be charged, and you will be found.”

Several attorneys The Intercept spoke with suggested that a conspiracy case would be much more clear-cut in the Capitol riot than in many of the other instances in which prosecutors have brought similar charges, both against protesters and, increasingly, against alleged gang members. They noted that many of those who participated in the riot had deliberately planned and documented their intentions, online, for weeks leading up to the assault. And conspiracy charges, they added, could also be levied against those who explicitly incited the riot, possibly including the president. “It would be wildly, wildly asymmetric, and wildly uneven, if these people were not charged with conspiracy,” said Loadenthal, who expects such charges will eventually be filed.

But the same attorneys also cautioned against embracing far-reaching theories of liability that seek to hold hundreds responsible for the crimes of a few, and especially warned against validating unjust charges like that of “felony murder,” a crime that has landed scores of people in prison, and on death row, over murders that they did not personally commit.

“Prosecutors routinely deploy those sorts of tactics and those theories of liability against people of color,” said Johnson, the Georgetown professor. “I am not advocating for that or more of it. I want prosecutors to stop using these attenuated theories of liability against people. … I certainly would not advocate for people being charged with felony murder here, just because I think that the felony murder rule is wrong.”

Others echoed that sentiment. “I certainly don’t want to see more people prosecuted more easily with over-expansive theories of guilt,” said Andonian, pointing to the mass conspiracy prosecution of the J20 defendants as an example. “Because it will be turned around tomorrow on [Black Lives Matter], it will be turned around tomorrow on gangs made up of people of color.”

These critics also warned that a mass prosecution holding all Capitol rioters responsible for the worst conduct of some of them would only further embolden a movement that has already turned Ashli Babbitt, the woman killed by Capitol Police as she stormed the building, into a martyr. And while they said that people should be prosecuted for the crimes they committed, they also warned against tasking the courts with fixing a crisis that runs far deeper. “No one in a vacuum believes that prosecution or jailing or arrest is actually going to prevent any kinds of harms that were committed that day,” said Harvey, of the Advancement Project. “That doesn’t address the broader issues.”