Prosecuting the Trump Coup Attempt Compared to the J20 Prosecution

Yesterday, WaPo published a story describing that there’s a debate over whether to charge all the people can identifiably entered the Capitol during the January 6 coup attempt.

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 back-and-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.

The story explains some of the concerns: If all the evidence that they have shows some sympathetic person entering the Capitol non-violently and then leaving, they might lose. These are [largely white] people with no arrest records. Lots of defendants are likely to invoke Trump to justify their actions. Prosecuting everyone will overwhelm the courts.

Nevertheless, these people said, some in federal law enforcement are concerned that charging people solely with unlawful entry, when they are not known to have committed any other bad acts, could lead to losses if they go to trial.

“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.

“If you think of yourself as a soldier doing the bidding of the commander in chief, you don’t try to hide your actions. You assume you will be held up as a hero by the nation,” criminal defense lawyers Teri Kanefield and Mark Reichel wrote last week.

Such a defense might not forestall charges but could be effective at trial or sentencing.


There is also a question over whether charging all of the rioters could swamp the federal court system. In 2019, D.C. federal courts recorded only about 430 criminal cases, and fewer than 300 last year, when the legal system slowed significantly due to the pandemic. Many of those cases, however, had multiple defendants.

I’m very sympathetic with the last issue: while I’d love to use Trump’s crimes as an excuse to expand the number of DC District Judges, there will always be a bottleneck to present anything to a grand jury, because of COVID. I’m unworried that a bunch of people will get a misdemeanor record for participating in a coup attempt.

I think the expressed worries about Trump suggest that someone at DOJ or FBI doesn’t yet realize that Trump must be a part of this, even to hold the more dangerous insurrectionists to account. And if I had to choose whether DC’s prosecutors focus on making that case — that Trump’s efforts to undermine legitimate election results in multiple states and Rudy’s coordination with members of Congress tie directly to the mob they used to delay the certification of the vote — or charging 400 of 800 people with misdemeanors, I say focus on Trump and his co-conspirators.

I think DOJ is right that they will lose some of these cases (all the more so if, as the story suggests might be one way for DOJ to deal with the surge, the trials were moved out of DC). It turns out white supremacists sometimes get a more sympathetic take from jurors than black people do.

That said, I want to consider that concern in light of a comparison someone made: the J20 protestors arrested on the day of former President Trump’s inauguration. While a handful of them pled guilty early, many of the other cases were ultimately thrown out.

Even ignoring the context of Trump’s attempt to use the mob in an effort to steal the election, two things distinguish the two events.

First, as one of the people arrested in 2017 described last week, cops immediately arrested hundreds of people at the Trump protests, both those who had committed vandalism and those who did not.

On Jan. 20, 2017, around the time Trump was sworn in, D.C. police cornered a couple hundred people — largely protesters but also bystanders, journalists and legal observers — onto a street corner far from the White House or the Capitol grounds. The justification for the mass arrests was that a handful of protesters in the crowd had destroyed the windows of several businesses, including a Starbucks and Bank of America branch, and damaged private vehicles parked on the street. I was covering the protest as a freelance reporter and, after catching an eyeful of pepper spray, I got caught up in the mass arrest while trying to leave. We spent the night in jail; police confiscated our phones.

At first, I figured we’d all be charged with contestable misdemeanors. Instead, the U.S. attorney’s office conjured up a radical conspiracy theory that rested on defining the protest march as a black bloc riot in which every alleged participant was guilty for all property damage, ultimately charging more than 200 people. Our indictments referenced protest chants captured on video as evidence. Although my actions, as alleged in the indictment against me, consisted of walking and wearing dark clothing, I was charged with more than half a dozen felony riot and destruction charges. It’s hard to convey the terror I felt, especially as Trump loyalists cheered on my prosecution because I was a journalist, gleefully using racial slurs.

Almost no one was arrested at the Capitol, meaning everyone is having to be identified after the fact, largely from social media and videos of the event. It appears that DOJ is already conducting a kind of triage process, focusing on those who were obviously violent or ties to a more organized group. So the arrests are already selecting for prosecutable behavior.

Also, by comparison with the Trump protestors who were arrested on a public street, merely entering into the Capitol building in an attempt to stop the vote count amounts to two crimes, with which most current defendants are being charged:

18 U.S.C. § 1752(a), which makes it a crime to (1) knowingly enter or remain in any restricted building or grounds without lawful authority to do; (2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engage in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions; (3) knowingly, and with the intent to impede or disrupt the orderly conduct of Government business or official functions, obstruct or impede ingress or egress to or from any restricted building or grounds; or (4) knowingly engage in any act of physical violence against any person or property in any restricted building or grounds; or attempts or conspires to do so. For purposes of Section 1752 of Title 18, a restricted building includes a posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting; or any building or grounds so restricted in conjunction with an event designated as a special event of national significance; and

40 U.S.C. § 5104(e)(2)(D), which makes it a crime for an individual or group of individuals to willfully and knowingly (A) enter or remain on the floor of either House of Congress or in any cloakroom or lobby adjacent to that floor, in the Rayburn Room of the House of Representatives, or in the Marble Room of the Senate, unless authorized to do so pursuant to rules adopted, or an authorization given, by that House; (B) enter or remain in the gallery of either House of Congress in violation of rules governing admission to the gallery adopted by that House or pursuant to an authorization given by that House; (C) with the intent to disrupt the orderly conduct of official business, enter or remain in a room in any of the Capitol Buildings set aside or designated for the use of— (i) either House of Congress or a Member, committee, officer, or employee of Congress, or either House of Congress; or (ii) the Library of Congress; (D) utter loud, threatening, or abusive language, or engage in disorderly or disruptive conduct, at any place in the Grounds or in any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress or either House of Congress, or the orderly conduct in that building of a hearing before, or any deliberations of, a committee of Congress or either House of Congress; (E) obstruct, or impede passage through or within, the Grounds or any of the Capitol Buildings; (F) engage in an act of physical violence in the Grounds or any of the Capitol Buildings; or (G) parade, demonstrate, or picket in any of the Capitol Buildings.

The former, unless done with a weapon, is just a misdemeanor, what most of the 400 people who might not otherwise be charged would be charged with. But as noted, DOJ (probably correctly) believes that some people will be able to argue they thought they were permitted in, especially if they claim to have operated on Trump’s orders.

There are two other lessons in the J20 case, though, both of which offer important lessons here.

First, in an attempt to claim that the protest was planned to be violent, DOJ relied on a video from Project Veritas which was — unsurprisingly — edited to be misleading. But they withheld the most exculpatory parts.

While the government used some recordings from the right-wing group — which has frequently been found to selectively edit its videos — in Inauguration Day cases that went to trial, a judge later found that prosecutors were wrong not to disclose an additional cache of videos and audio recordings in their possession. The judge also ruled that prosecutors violated evidence disclosure rules in not revealing video edits that the government made.


Defense lawyers also complained that the government originally didn’t disclose Project Veritas as the source of the recordings, and that the defense lawyers had to piece together the connection through their own research. Speaking at Friday’s hearing, Elizabeth Lagesse, one of the defendants whose case was dropped, questioned whether the secrecy surrounding the videos was the result of an arrangement between the government and Project Veritas.

The judge then asked Goodhand if there was any agreement to keep Project Veritas’s identity secret. Goodhand said he didn’t know. Morin ordered him to file a supplement to the government’s court papers with an answer.

The government will also have to rely on unofficial videos to prosecute the insurrectionists. While there’s little reason to believe they’re intentionally edited (in many cases they’re not edited at all), there will be a provenance issue.

More importantly, DOJ tried, but failed, to get an expansive warrant for the website of the organization that planned the protest, partly an effort to get the IP address of everyone who accessed the site.

DOJ initially demanded that DreamHost turn over nearly 1.3 IP addresses on visitors to the site. Millions of visitors—activists, reporters, or anyone who just wanted to check out the site—would have records of their visits turned over to the government. The warrant also sought production of all emails associated with the account and unpublished content, like draft blog posts and photos.

The new warrant parameters exclude most visitor logs from the demand, set a temporal limit for records from July 1, 2016 to January 20, 2017, and also withdraw the demand for unpublished content, like draft blog posts and photos. This was a sensible response on DOJ’s part—both legally and politically.

But the new warrant is not without its flaws. First, it’s not clear from either the warrant itself or the facts of the case whether DOJ is ordering DreamHost to turn over information on one account or multiple accounts. At a minimum, DOJ should be required to specify which accounts are subject to the order. More fundamentally, DOJ is still investigating a website that was dedicated to organizing and planning political dissent and protest. That is activity at the heart of the First Amendment’s protection. If, as DOJ claims, it has no interest in encroaching on protected political activity and organizing, then it should allow a third-party—like a judge, a special master, or a taint team—to review the information produced by DreamHost before it is turned over to the government. Anything less threatens to cast a further shadow on the legitimacy of this investigation.

Again, I highly doubt DOJ would go this aggressively after the groups as groups. Indeed, at least from public reports, DOJ has obtained very little legal process yet, and what they’ve gotten has been targeted at individuals already arrested. (Though there are reports that they’re getting location data from the cells in and around the Capitol.)

Because of the difference I’ve already laid out — that violent entry into the Capitol is a crime — DOJ won’t be forced to try to tie all the rioters together in one intent (though, again, Trump offers them that and they should use it). So long as they can show the violence and illegal entry should have been obvious, they won’t need to prove that everyone came in with the intent to cause damage.

Still, this all comes back to the context — a context that report after report seems to suggest DOJ is not vigorously pursuing yet.

To the extent a mob descended on the Capitol to prevent the certification of the vote — and defendant after defendant posted evidence to their social media showing that’s what they understood they were doing — then you have a conspiracy.

Ironically, then, Trump ended his presidency providing the legal case his DOJ tried to trump up on its first day.

96 replies
  1. Mister Sterling says:

    There is one solution that this nation has used before for “stateless” terrorists: just assassinate them extrajudicially. I find it unacceptable and frankly shocking that were about to let hundreds of identified people who committed multiple felonies walk because we’re treating them like white people with rights instead of the terrorists they are.

    I sound harsh? Well I should. Twenty years ago my office building was struck by American Airlines flight 11. And we didn’t treat the perpetrators like white people with rights. What happened on 1/6 was every bit as bad considering the irreversible damage it did to the republic. And we’re letting them walk.

    • AndTheSlithyToves says:

      Interestingly, I have read (not in depth, which I will do now you’ve reminded me) that the Russians were very supportive of and helpful to the US after the 9/11 attacks. Interesting, also, is Trump’s resurrection as a “successful businessman and billionaire” after elite Saudis, who had been throwing tons of money around DC for years, were quickly hustled out of the country after the attacks, and their “brand” badly tarnished to this day. History doesn’t repeat itself but it does often rhyme.

      • timbo says:

        They were not so helpful when we invaded Iraq. In fact, they were publicly live streaming US unit locations before and during the fight in March 2003. Admittedly it was an illegal war though so…

        • ducktree says:

          My memory banks from 2003 are foggy right now (bless you, Seagram’s), but wasn’t that the same incident in which US forces also “accidentally” struck the Chinese embassy in Baghdad? A mere slip of the calibrations they said . . .

          • Hika says:

            Not sure on that one. I do remember a bunch of bombs landing on the Chinese embassy in Belgrade in 1999. USAF dropped the bombs, but the targeting was by CIA who managed to not notice the location being an embassy. Truly unbelievable.

      • Dave_MB says:

        Yes, Saudi’s were flown out of the country while all the airports were still on lock down and there weren’t any planes flying. 15 of the 19 9/11 hijackers were from Saud Arabia. When Trump took office, the first country he visited was Canada. Just kidding, it was Saudi Arabia.

    • P J Evans says:

      Twenty years ago we had laws that we could have used, but people in government were after vengeance, rather than justice. We’re still paying for that.

    • Ravenclaw says:

      Kinda surprised you’re getting away with that one here. I haven’t heard of any stateless persons involved in the 1/6/21 insurrection, or (so far) any foreign nationals. The latter might well be subject to deportation, but not assassination. Our government should not use assassination, period. Yes, some people need to be killed – those who are engaged in armed warfare against our nation and who do not surrender. So as far as I’m concerned, any police officers who opened fire that day, once the mob (and its core of insurrectionists) made its intentions clear were fully justified; they (well, just the one really!) were protecting Congress against armed attackers. But just kill them now? No. Then they would have won. Our nation would have been defeated and degraded beyond redemption.

  2. joel fisher says:

    I gather that the phones of the rioters are generally trackable. What’s to stop the FBI from calling the owners of the phones that were in the capitol and asking WTF they were up to on 1/6? With just the phone tracking information there might be probable cause to issue complaints/summons for the above misdemeanors. Why isn’t this happening? How many Trumpsters are left in the Justice Department? The FBI? Seems to me that being sympathetic to, and supportive of, crime and criminals is a good reason for a good cause dismissal from government law enforcement service.

    • subtropolis says:

      If you seriously believe that a Trump-loving cabal in the FBI is directing how this investigation is being handled, then you’ve perhaps been watching far too many crappy movies.

      Yes, they have cell signals to work with. But they are also supplementing that information with visual confirmation that the individual whose mobile is associated with a given ID was, in fact, present. A quick browse of the news ought to reveal to you that the FBI has been arresting people using said information.

      • joel fisher says:

        My taste in movies is neither her nor there—pretty crappy, I have to admit: car chases, gratuitous sex, etc.—but I’d be willing to bet there are Trumpy holdovers in the upper ranks of both the FBI and Justice who are in a position to slow the work down, make decisions that seem legit, but break in favor of letting the droolers off, and in general, to not see to it that the laws were enforced. If Bill Barr had a gift it was for institutional skullduggery and during the opportunity of his 2 years at Justice, how many Barristas have burrowed/planted into the flesh of the Department. And BTW, speaking of movies: check out “Zulu” and after you get past the racism, note the Zulu king sends his troops to attack the British fort where the heros/villians are holed up. The purpose of the first attackers is to gauge the range of the defenders’ guns; then the real attacks begin.

    • Ravenclaw says:

      The serious baddies probably had enough sense to leave the cell phones in the car. Hence all the walkie-talkies and hand signals.

  3. P J Evans says:

    I suspect a lot of them didn’t have violent intent, other than “taking over the Capitol”, which they probably thought was like any other takeover/sit-in. That they should have known it was closed to the public that day is on them, IMO, and and that they thought it was OK “because Trmp said” is also on them. (Here I’d love to ask them the question my mother would use: “if he said to go jump off a bridge, would you do it?” Make them think a little, if they still can.) But neither of those would prove criminal intent, only following without thought.

    • greengiant says:

      This seems like denial. Steve Bannon calls for killing Fauci and Wray. Others called for killing Pelosi and Pence. Add in the other death threats to Congress people of color.
      The crimes don’t start with the breaking and entering of the building. They start with the planning of violence and proceed to the violence to capitol police on the barricades to the grounds. Should anyone trespassing in the wake of rioters who assaulted police be charged with the Federal riot act unlike the 2017 case where street protestors were co located with window smashers?
      If it can be shown a rioter was pre exposed to the calls for violence does that show criminal intent? The rioters did not just fall off a peaceful turnip truck.

        • subtropolis says:

          Agreed. It seems like more trouble than it’s worth to prosecute every last one of them. Certainly, go after those who can be shown to have participated in any vandalism, or destruction in the course of breaking in. Or, anyone who took part in conflict with the police. Or any of the organized groups who attended. (Loud Boys, militias, etc.) But the rest of the useful idiots probably aren’t worth the trouble.

          As for the conspirators who were behind it all, they should be hunted down, charged, and prosecuted to the extent that they die in prison, imho.

        • timbo says:

          Sigh. But you could still charge them for failure to heed an order to disperse, correct? Also, I’m unclear on how the term “I won’t accept an illegal order!” is somehow a get-out-of-jail-free card here. It isn’t. And if all the things about “I was just doing what the President asked me to do!” makes it harder on you to see a crime when it is openly committed in broad daylight, that’s on you, not on the law. Or is individual responsibility for behavior now out the window because, gee, it’s “oppressed white people” doing the rioting and trespass?

    • subtropolis says:

      I’m unmoved by the suggestion that they might have felt that it was ok because their aTroll King told them to.

      “… some people will be able to argue they thought they were permitted in, especially if they claim to have operated on Trump’s orders.”

      They are can argue that but it should be fairly straightforward to shoot down. He, and others, had been quite clearly speaking of violent takeover. He was extolling them to attack one of the branches of government.

      Hell, even the frigging President is not allowed to walk onto the Senate floor uninvited!

      • Vicks says:

        If you consider the fact that many of these people consider Trump is their higher power, I think that not only did it help them justify what they were about to do, I believe it gave them confidence that the plan would work.

          • Eureka says:

            Well, I was gonna joke back about how getting high on one’s own supply doesn’t stand as a defense until recalling how lots of places charge up the dealers these days. Which brings us right back to the opiate kingpin and his lieutenants.

      • timbo says:

        This. All these rioters arguing that they somehow had a right to trash the Capitol building and disrupt the counting of the Electoral College votes are also arguing that just following orders (from Twitler) and ignoring the law is just fine. The mental gymnastics required to make this an actually cogent argument is astounding…ly tedious.

  4. pdaly says:

    Without a conspiracy to tie all the activity together, it is as if the DOJ wants to treat the entire mob attacking the U.S. Capitol as individual lone wolves.

    • subtropolis says:

      As Marcy keeps saying, we ought to differentiate between actors. There are the conspirators with 45; the organized militia types (who might be found to have conspired with a cutout between the first group); and the rest of the mob. That latter group includes many hotheads who committed violent or damaging acts. But it clearly also includes a lot of dumbasses who merely went along with the crowd.

      It’s those last people who some at DoJ are questioning the worth of prosecuting. They are most certainly not questioning whether they should be pursuing a wider conspiracy investigation.

    • timbo says:

      There’s a conspiracy, it’s obvious and was all over the front pages, radio, and Internet for months. Just because you won’t acknowledge it and others won’t prosecute it doesn’t make it less true. We need to stop playing into the hands of fascists and proto-fascists and get to holding folks accountable for playing their “just following the leader!” card here.

  5. Raven Eye says:

    I’m a bit worried that DOJ is going to come up with a scheme to let some of these people off — seemingly in the interest of efficiency (the problem of pushing that many people through the system within an acceptable time span). But efficiency is one of the more frightening terms in government…potentially doing the wrong thing the right way.

    If the charges of some can be reduced, can they be presented before a magistrate judge? Can the District Court(s) appoint additional part-time magistrate judges to deal with the surge? I’d rather some of these people be faced with a misdemeanor charge and make an appearance rather than just being let off.

    The effectiveness aspect (which is probably like log-rolling) is to make it clear that no matter how much fun you had in the Capitol, you still got charged and had to pay (time or money). I don’t want to be vengeful, but now and then you need to remind folks that some types of behavior are unacceptable.

    (Some of those people may have had, or will apply for, security clearances or law enforcement sensitive information. That worries me too.)

    • BobCon says:

      There is a long term cost to people to having even an arrest and misdemeanor on their record, and in this case I’m reluctant to let that go.

      This wasn’t a bunch of high school kids trashing a rival school’s stadium after a game, who you might argue deserve a bit of community service to clean their records.

      That doesn’t mean prison or felonies for everyone, but letting people go without any serious consequence seems wrong for participation in what they knew was designed to interfere in the finalization of the election.

      • Vicks says:

        Yes, on consequences and you would think for security purposes it would be important that their stunt at the capitol pops up when appropriate.
        Say for example they go to buy a gun before the next rally.

        • emptywheel says:

          Those guilty of misdemeanors will still be allowed to own guns. Indeed, many of those facing only a misdemeanor are being allowed to keep their legal guns while out on bail.

          But their involvement SHOULD show up in case of someone applying for government work or any other kind of position of trust.

          • timbo says:

            There needs to be equal enforcement here. Pretty sure these DOJ and FBI characters are pretty keen on getting all BLM protesters into their database and with permanent records if they can. Seems like with these folks who tried to overthrow a legitimate election that they seem a lot less concerned…

      • Ginevra diBenci says:

        Agree, BobCon. The fact that these people “had no criminal record” is likely in some cases due to demographic advantages built into our justice/policing systems. Their actions January 6 make it high time they paid a price that millions of others less similarly advantaged pay their entire lives.

  6. harpie says:

    [WaPo]: “If you think of yourself as a soldier doing the bidding of the commander in chief, you don’t try to hide your actions. You assume you will be held up as a hero by the nation,” criminal defense lawyers Teri Kanefield and Mark Reichel wrote last week.

    I REALLY couldn’t care less WHAT these people BELIEVE…or what they ASSUME. [Their DELUSIONS are one of the reasons we’re in this mess to begin with.]

    Also: if you are NOT a member of the military, the President is NOT your “Commander -in Chief.”

    • timbo says:

      Exactly. Are the defense attorneys arguing that their clients are possibly insane or able to control their own lives sufficiently so as to not be taken in by Twitler?

  7. Hopeful says:

    Used to be “Worried”…..
    There must be some statute of limitations for these types of offenses.
    No need to roll them in all at once.
    Law Enforcement just needs to make an announcement that all people who were involved in the insurrection will eventually get their day in court and let them sweat a little bit, never knowing when the person at their door will be bearing the bad news.

    • bmaz says:

      The general federal SOL is five years. There are exceptions, but not many. Presume five and go from there.

      • Hopeful says:

        Plenty of time.

        Can prioritize the the worst offenders, let the others stew for awhile.

        If these delusional people don’t feel fear and apprehension, they will keep on their path. Jail time for some will send a message as well.

        • timbo says:

          Yeah, I don’t buy this “It’s too hard!” garbage. Five years is plenty of time to clean this all up nicely… unless they’re a foot-dragging GOP stooge…

          • Hopeful says:

            I also think five years time is enough to take advantage of the current dilemma.

            As of January 2021 (probably earlier), the strongest advocacy against the continued existence of our Republic is right wing, white supremacist, organizations.

            They are the current threat. (I hate the word “terrorist”). But these groups are far more threatening than anyone that we have been calling a terrorist.

            I hope these groups like Proud Boys, QAnon, Oathkeepers, 3%ers, etc, etc, are treated accordingly.

            The January 6 insurrection is a focal point. Now there are identifiable people working to undo a Republic.

            The only way to make them stop is to hold them accountable.

  8. greenbird says:

    who’s dissecting the video of the rally’s keynote speaker, and any video of his actions-behavior afterwards ? i’m feeling needy today: if someone can direct me to a link … ? or is there none ?

    • greenbird says:

      C-SPAN in all its precision:

      i also found a good report from Business Insider and USA Today, and a transcript from Rev.

      i also found mirriam’s twitter account – @mirriam71 – to follow, from the final link in marcy’s post … a relatively good haul, but MORE than what’s found in these is needed, it seems, for ‘conspiracy’ to be well-enough-understood for poor DOJ to act.

    • timbo says:

      Exactly. Is the FBI and DOJ actually using any of this video at the moment? The whining about “It’s too hard!” seems to neglect the evidence at hand…

      • subtropolis says:

        Last week, the FBI stated that it was going through more than 140,000 images and videos. So, yes. If there’s any neglect, it’s on your part for making ridiculous assumptions. They’re not procrastinating!

        • timbo says:

          No. You are trying to distract from the obvious 10 videos that would pretty much allow one to draw the correct conclusion. Stop spouting large numbers of videos out as some sort of argument for not following up directly on the case for conspiracy and incitement.

    • Eureka says:

      “Fight for Trump”: Video Evidence of Incitement at the Capitol

      How direct is the connection between what President Donald Trump communicated to his supporters and their actions in laying siege to the U.S. Capitol? Videos recorded by many individuals over the course of the day provide some answers. A portion of these videos have not been seen widely before, including video footage largely from the platform Parler showing how the crowd reacted in real time to some of the most potent lines in Trump’s speech at the Ellipse. The videos, along with other information in the public record, provide strong evidence of a causal link between Trump’s messages to his supporters and their dangerous, illegal conduct. The collection of videos, viewed chronologically, also shows the ways in which Trump placed the life of Vice President Mike Pence, among others, in grave danger.

      (emphasis added)

  9. Peterr says:

    “But as noted, DOJ (probably correctly) believes that some people will be able to argue they thought they were permitted in, especially if they claim to have operated on Trump’s orders.”

    Let’s go with that for a minute. Imagine the questioning of the defendant by a prosecutor . . .

    Q: Before you entered the Capitol, did you see any police officers?
    A: Yes.
    Q: Were they trying to keep people away from the building, by standing at barricades?
    A: Yes.
    Q: Yet you claim you thought you were permitted in because President Trump invited you?
    A: Yes.
    Q: Did you see tear gas being deployed by the police?
    A: Yes.
    Q: Did you see pepper spray and other similar agents used against the police?
    A: I saw spraying, but don’t know what it was.
    Q: Did you see that the doors of the Capitol were locked?
    A: I couldn’t see them directly, but could tell people weren’t immediately going in.
    Q: Did you see people climbing the walls of the Capitol?
    A: Uh . . .
    Q: Did you see people using poles and bars to break out windows?
    A: Uh . . .
    Q: Did you see people tearing the material off the scaffolding that had been erected for the inauguration?
    A: Uh . . .
    Q: Did you see people physically attacking police officers?
    A: Uh . . .
    Q: Did you see a gallows erected outside the Capitol?
    A: I don’t recall.
    Q: Did you hear people chanting “Hang Mike Pence! Hang Mike Pence!”
    A: No.
    Q: It seems to me that there were a lot of people doing a lot of things to keep you and others from getting into the Capitol on January 6. Did any of that ever make you wonder about that invitation from President Trump? Maybe you heard him wrong, or got the wrong date?
    A: No. He wanted us there to protect democracy.
    [long pause]
    Q: Have you ever been invited to someone’s home for dinner, a movie, a back yard BBQ?
    A: Sure.
    Q: Ever beat down their door to get in?
    A: No.
    Q: Did you ever break windows to get inside?
    A: No.
    Q: Did you ever climb up the side of their house, to get in through the second floor?
    A: No.
    Q: Because you’ve got an invitation, right? You don’t need to do that and can just knock politely and wait, right?
    A: Yeah.
    [long pause]
    Q: I’m kind of stuck here, and maybe you can help me out with one last question. Here’s my quandary: either the Capitol Police didn’t get the word that you were invited because they tried so hard to keep you out, or maybe the president’s invitation to you to violently break into someone else’s house and threaten the rightful occupants wasn’t his invitation to make. Which was it?

  10. Stacey says:

    Marcy ends her post with “Ironically, then, Trump ended his presidency providing the legal case his DOJ tried to trump up on its first day.”

    I enjoy noticing that life unfolds like a work of fiction with all of the literary tools authors use to tell their stories: book-ending or sandwiching themes around a narrative, or naming the main character “Trump” and then having him “Trump up all kinds of charges against all of his enemies” and “play Trump cards” all over the political spectrum for 5 years to great effect, and then to have this man who’s most recognizable avatar is the Trump Tower end the way the relevant Tarot Card–the Tower Card–tells us he would, in an epic fall, is just too perfect for words.

    Regarding the rioter’s prosecutions: Charge them all with felony jay walking and take away their ‘precious’ if that’s all the system can do–castrate them by taking away their AR-15 Penis Enlargements (that’s my sarcastic answer anyway).

    More seriously, a large part of the problem America has now–and the Trump years have brought out in stark relief–is that they collectively give off the energy of a surly, entitled teenager living in his mother’s basement, playing virtual life on their computers, while also thinking that they’re somehow going to save America from something something. Any outcome for the lessers of these offenders that doesn’t end in them getting a really strong does of “put your big boy pants on and take some goddamn responsibility for yourselves and your own decisions” is a sorely missed opportunity that I fear we can’t afford.

    We don’t need to throw the book at ALL of them, but “the President invited us” should not stand as a defense against insurrection on any day in our justice system. And that gal that the Daily Show correspondent, Klepper, interviews that is upset she got maced one foot inside the capital tells him the reason they were entering the capital is “It’s a Revolution! We’re storming the Capital!” which was supposed to excuse her entry AND justify her expectation NOT to get maced?! In my opinion, THAT misconception NEEDS to be corrected in all of their minds and the minds of anyone watching all of this shit show!

    Any maybe turn as many of them as you can into FBI informants to keep an eye on what will now surely be a years long insurgency in America! Make them earn their probation-supper for a few years by doing something actually useful for their country.” You want to Save America? Here you go, Spanky! Save yourself at the same time!”

    • PeterS says:

      “life unfolds like a work of fiction”

      Kind of o/t, and you probably didn’t mean that literally, but I would put things rather differently: that it is human nature to weave stories out of unfolding events, so that those events appear to make sense (even if objectively they don’t form a coherent narrative). 

      Shorter version: life includes a whole lot of random shit.

    • PeterS says:

      To get back more on topic, people who are especially good at weaving stories from disparate facts (I don’t mean you, Stacey) are called conspiracy theorists – like the QAnon followers who came to the Capitol on 6 January – or fiction writers.

      (There was probably an evolutionary advantage to being good at seeing connections between random events; you were more likely to stay alive on the savanna if you were a bit paranoid, as opposed to thinking “oh, it was probably nothing”)

      • Stacey says:

        Yes, PeterS, the brain has this handy little trick it does that I center on the mind’s uncomfortableness around ‘not knowing’ or being ‘in the dark’, not understanding.

        We’re all familiar with the fact that the brain can take a simple line drawing of a face, a horse, a whatever, and in reality, it is a line drawn on the page, full stop. But the tendency of the mind to strive/need to complete an unknown, pulls/pushes the formulation of an image into something known and recognizable, which feels comfortable and satisfying.

        The whirlwind of disruptions and upheavals in EVERYTHING in the world that a decade or two ago most people felt like were reasonably predictable in the aggregate, has left the human mind in a state of extreme dislocation and a terribly uncomfortable fog that fundamentalist religions benefit from by soothing somewhat with ‘simple answers’ and which conspiracy theories similarly sooth by providing a sense of “completing the picture”.

        I think the tendency to ‘connect the dots’ with conspiracies etc. is a self-soothing, self-care strategy for the fundamental and catastrophic psychic dislocation of pert’near all of humanity at this point, I’m sorry to say.

    • skua says:

      “the energy of a surly, entitled teenager living in his mother’s basement, playing virtual life on their computers, while also thinking that they’re somehow going to save America from something”
      Here are two elements of fascism:
      Youthful energy and vigor.
      Saving the nation from a dire but imprecise threat.

      Other elements of fascism present are; the great leader who understands and expresses the will of the people in plain language, who says what needs to be said, the disruption of the rotten establishment, the unmasking of the press, evocation of a potent and simple past, …

  11. cavenewt says:

    The Trials and Errors video linked in the article makes it sound like conspiracy is a slam dunk. I’m going to go listen to the sedition video now, but if demonstrating a conspiracy is as easy as she describes, why are we stressing so much?

    • bmaz says:

      Lol, Mirriam is great, and a friend (presume as to Marcy too) going back a long ways now. It is easy to charge conspiracy, it may, or may not, be easy to convict on it. Sure would not call it any “slam dunk” as to conviction. Not yet anyway.

      • cavenewt says:

        Well, of course I figured it would be harder than it sounds to get an actual conviction. I did really appreciate the clear and concise way she explained the issues involved.

        Related question about Trump specifically: impeachment doesn’t require the level of evidence that a criminal prosecution does, and doesn’t even require an actual criminal act, correct? But this is probably rendered rather irrelevant because of the political nature of this impeachment, right?

        • Peterr says:

          Impeachment is, by definition, a political act. The Senate gets to decide what is or is not worthy of conviction. Criminal law may inform their debate, but they are not at all bound by it.

        • bmaz says:

          Correct in every regard. If you haven’t previously known of Mirriam, she was one the true cutting edge of the group of lawyers that camped out in DC area airports at the initial instigation of the Muslim travel bans to support incoming at risk

  12. ducktree says:

    Lenny: Tell me about the rabbits again, George! Tell me about the rabbits!! They’re so soft and fluffy . . . I’m gonna hug ’em, and pet ’em, and squeeze ’em and squeeze ’em!!

    It still resulted in homicide . . .

    [in response to greengiant @ 5:55]

  13. Bbquman says:

    This was a attack on the U.S. Congress & constituted an act of war against the United States, making the War Department the appropriate body to control the proceedings. The perpetrators should be
    Tried by a military tribunal like Lincolns assassins.

    • bmaz says:

      Um, NO, it is NOT an “act of war”, there is NO “War Department”, and there is no basis whatsoever for a “military tribunal”. Your entire comment is bonkers.

      • P J Evans says:

        maybe one of those who thinks that the government stopped existing legally in 1871, because they don’t understand the act that redid the government of DC.

      • timbo says:

        There is a War Department that was renamed the “Defense Department” to make the US seem less belligerent. Last time I checked it was used to conduct an illegal war in Iraq 18 years ago. So, yeah, to many of us, it is still the “War Department”.

        • bmaz says:

          Well, it is “not” the “War Department” and that chap’s comment was bonkers. Also, have to say, your understanding of how conspiracies are formed, charged and prosecuted at trial is very thin. It is nowhere as easily charged and convicted as you seem to think. And that is why only a couple of conspiracy counts have been filed yet.

          • timbo says:

            My understanding is that it is easily charged and hard to prosecute, correct? That is, if you want it to actually stick then it has to be pretty iron-clad. That what I have understood from your own posts over the past two decades. But, in this case, it might be better to get a grand jury looking into the conspiracy aspects pronto and then worry about all the charging and stuff later. My question is, I suppose, more directed at making sure that conspiracy is, you know, like considered, by a grand jury, actually presented to it in an orderly fashion, and then get on with actually charging folks with it.

            The facts of Jan 6 and all the events leading up to it certainly point to a conspiracy against the lawful conduct of Constitution itself. Or was Flynn spouting off stuff in an isolated vacuum? What about Guiliani? On his own in a vacuum? How about “It’ll be wild!”? Is Trump being upset with Pence the morning of January 6th just a rumor? How about the trajectory of the origin of the conspiracy of the 6th? Hard to prove with all the public evidence we currently have available?

            Seems to me that there’s plenty of evidence of conspiracy to insurrection (from the day of, with plenty of supportive evidence on Twitler’s state of mind, along with the state of mind of many of the Twisslerings also invovled… now, as you I fully acknowledge, you have more experience in this area… but what strikes me as not cool is talking about how hard it is instead of pointing out how easy it might be if one only had certain facts in hand and a judiciary and grand jury that wasn’t completely corrupt, etc.

            • timbo says:

              Granted, I’m on board with the idea that Pelosi ain’t interested… so I guess there is some common agreement there.

  14. skua says:

    I find the claim in the WaPo article that the number of rioters entering the building isn’t known to closer than +100 and maybe more than 800 to indicate a lack of serious effort to identify how many people breached.

    What with the multiple rioter videos and cctv available, making a database with fields for head-cover, hair color, skin color, skin markings, mask color, mask type, lower-body clothing, footwear, items carried, facial recognition hash, etc and entering each individual found in each video and then matching them with indivuals in earlier and later videos seems so easily do-able.
    IBM was providing computer generated lists of targets to the German National Socialists some 85 years ago. There have been advances in computing since then. But according to WaPo they’re not being used.

      • skua says:

        Thanks subtropolis.
        There are between 850 and 900 faces there as of 6:50 UTC 25 January. There seems to be no claim that each person is presented only once. And more images are being added and others corrected.
        If the LE involved have not done something similar then they’re not trying.

        • Peterr says:

          It’s not clear to me whether these were folks who all went inside the Capitol or were merely present outside. That’s a critical distinction if you are charging people with being in the building illegally, which is what that smaller number aims to be.

          • skua says:

            I’m sure yet if only videos from inside the Capitol are being used. Currently, 9:15 UTC Wed 27 Jan, there are over 900 faces on the website.
            (Those who need to be charged include those outside the building who are assaulting police.)

          • skua says:

            I’m sure yet if only videos from inside the Capitol are being used. Currently, 9:15 UTC Wed 27 Jan there are over 900 faces.
            (Those who need to be charged include those outside the building who are assaulting police.)

    • Ravenclaw says:

      The claim, I believe, is that there were approximately 800 who entered the Capitol during the insurrection, plus or minus 100 (i.e., somewhere between 700 and 900 – with maybe a bit of “play” around those figures as well). Nowhere does it suggest a number as low as 100.

      The number actually makes sense. I remember reading that the morning rally attracted about 8,000 people. Nowhere near all of them will have gone marching up the mall afterward (though there were a few others who joined the throng at that point – probably including some of the hard core ones); mostly likely about a third were that committed. And by no means all of them will have taken the dire step of assaulting the police and investing the Capitol building – again, one would guess about a third. Of whom, in turn, maybe a third were the serious insurrectionists who’d laid plans out ahead of time…

    • tmooretxk says:

      Don’t think there was much being “computer generated” in 1935. Might want to check your facts.

  15. chris says:

    This is where I hang my hat.
    “To the extent a mob descended on the Capitol to prevent the certification of the vote — and defendant after defendant posted evidence to their social media showing that’s what they understood they were doing — then you have a conspiracy.”
    IMHO, EVERYONE is as culpable as the worst among them, adhering to well-accepted US laws. How many time do we hear about driver of the car that took a felon away from a murder scene being charged with felony murder as well?
    I’ve said for years that the entree Trump cabal was a RICO case if there ever was one.
    This is just the logical extension of that.
    Just because you’re stupid doesnt mean you deserve mercy, when you’re trying to overthrow the government.

  16. Min says:

    May I suggest that deterrence is a major factor here? In that case, perhaps we can take inspiration from the enforcement of the KKK Act of 1871 by President Grant and AG Akerman, which broke the back of the original Klan, and greatly reduced political violence in the South. As we know, reconstruction did not ultimately succeed, however. Penalties meted out were not generally severe.

    Psychology has long shown that for deterring behavior (negatively reinforcing it, to use the technical term), the certainty of punishment is more effective than the severity of punishment. This suggests that, instead of dropping misdemeanor cases, prosecutors should offer slap on the wrist penalties to defendants in exchange for guilty pleas.

    • Ravenclaw says:

      The usual definition of negative reinforcement is that it’s a kind of backhanded reward; something yucky you were stuck with gets removed temporarily because of what you did, so you are more likely to do it again. Like being allowed to leave a dull workplace when you’ve finished the day’s tasks.

      But you’re right (albeit incomplete) about the effects of punishment. When it works at all, it follows the Hot Stove Rule: immediate, salient, consistent, instructive, and impersonal.

    • pasha says:

      precisely! this strategy wiped out the klan in south carolina for years. only the kingpins received long sentences, most received felony convictions with suspended sentences, but years of enforced probation coupled with loss of voting and firearms privileges broke the back of the movement

  17. mospeck says:

    Times are hard and it’s kind of bringing me down, but there’s always good news.. Maybe not exactly for us, but for our grand kids. Take rocket scientist Scott Manley here describing the vac raptor. It’s our way off of this rock. Just look at those turbo pumps cranking up and the Mach diamond at 7 minutes 25. Be of good cheer, SN9 is going to stick the landing.
    https: //

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