Politico Claims It Embarrasses Joe Biden that Non-Violent Civil Disobedience Merits Little or No Jail Time

Last week, Politico reported as news that non-violent January 6 trespassers might get little to no jail time which — it further claimed — might embarrass the Biden Administration.

Many Capitol rioters unlikely to serve jail time

The cases could embarrass the Biden administration, which has portrayed the Jan. 6 siege as a dire threat to democracy.

I have tremendous respect for the reporters involved, Josh Gerstein and Kyle Cheney. Yet the fact that experienced DOJ beat reporters could claim, as news, that non-violent civil disobedience might get no jail time made me really rethink the reporting on January 6, including my own. It’s crazier still that reporters might claim — generally, or in this situation — that a Democratic President might be embarrassed by DOJ treating civil disobedience as a misdemeanor offense.

In fact, Gerstein and Cheney are reporting on a subset of all the January 6 defendants, fewer than 60 of the 230 who had been formally charged by the time they wrote this, which they nevertheless describe as “many” of them.

A POLITICO analysis of the Capitol riot-related cases shows that almost a quarter of the more than 230 defendants formally and publicly charged so far face only misdemeanors. Dozens of those arrested are awaiting formal charges, even as new cases are being unsealed nearly every day.

Then, four paragraphs later, Politico explains why (they say) this might embarrass the Biden Administration: because both Biden himself and Merrick Garland called the larger event — in which 1,000 people, including 200 for assault and 100 for roles in a militia conspiracy, many still at large, must now be suspects — as a heinous attack.

The prospect of dozens of Jan. 6 rioters cutting deals for minor sentences could be hard to explain for the Biden administration, which has characterized the Capitol Hill mob as a uniquely dangerous threat. Before assuming office, Biden said the rioters’ attempt to overturn the election results by force “borders on sedition”; Attorney General Merrick Garland has called the prosecutions his top early priority, describing the storming of Congress as “a heinous attack that sought to disrupt a cornerstone of our democracy, the peaceful transfer of power to a newly elected government.”

Nowhere in the article do they provide any evidence that the assault on the Capitol wasn’t a heinous attack.

They base their claim that Biden might be embarrassed on expectations that DOJ prosecutors set, without noting that the first charges were filed before Biden was inaugurated and long before Garland was confirmed.

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.

Jacob “QAnon Shaman” Chansley was arrested on January 8 and indicted on January 11. Eric “Zip Tie Guy” Munchel was arrested on January 10 and indicted, with his mother, on February 12. Thomas Caldwell was arrested on January 19 and indicted along with Oath Keepers Jessica Watkins and Donovan Crowl on January 27. They (including Caldwell but not Watkins and Crowl) are the main defendants, of more than 350, about whom prosecutors can fairly be said to have tempered “sky-high” expectations. Their arrests and that expectation-setting happened under Jeffrey Rosen and Michael Sherwin, not under Biden and definitely not under Merrick Garland (under whom DOJ referred Sherwin to OPR for investigation after he did some expectation-setting on 60 Minutes). Even still, for all four (as well as other edge cases about whom the press set high expectations, like Riley June Williams), the investigation remains ongoing and there are reasons, including ties to the militia conspiracies, to believe there was some basis for the original suspicions about these people.

Likewise, the decision to arrest first and investigate later, a decision that led to the flood of arrests before prosecutors really knew who had done the most egregious things during the attack, also occurred under the prior Administration.

Indeed, under Garland (though not necessarily because of Garland or the departure of Sherwin), DOJ seems to have focused more of their ongoing misdemeanor arrests on suspects who might have video footage of interest to prosecutors or defense attorneys, with far more of a focus in recent weeks on arresting assault and militia suspects. And one of the reasons for the delays described in the story is that after Garland came in, DOJ asked for 60 days to catch up on discovery. We may yet learn that he and his subordinates decided to change the “arrest first, investigate later” approach adopted before he came in.

Sure, the press has claimed that the government has backed off some of its claims in the militia conspiracies. They did so, for example, when prosecutors backed off certain claims solely for the purpose of an Ethan Nordean detention hearing that, filings submitted weeks later suggested, may have been an effort to protect a pending conspiracy indictment and, probably, a cooperating witness. They’ve done so with the Oath Keepers, even though recent developments suggest even Jessica Watkins’ lawyer may now understand her role in what appears to be a larger conspiracy coordinated in Signal leadership chats is more damning than Watkins originally claimed. If anything, the Oath Keeper and Proud Boy conspiracies may be more sophisticated tactically than originally claimed, and that’s before any explanation about things like who paid for vans of Proud Boys to travel from FL and what happened at twin events in DC and Florida in December, in which conspirators (and key Trump figures) played central roles. That’s also while the person who laid a pipe bomb the night before the the attack remains at large.

To further back its claim that Biden might be embarrassed, Politico implies that all the plea deals expected in weeks ahead will be misdemeanor pleas without jail time, which will be “awkward” for DOJ to defend.

Prosecutors have signaled that plea offers for some defendants will be coming within days and have readily acknowledged that some of the cases are less complicated to resolve than others.

“I think we can work out a non-trial disposition in this case,” Assistant U.S. Attorney Emory Cole told Judge Dabney Friedrich last week in the case of Kevin Loftus, who was charged with unlawful presence and disrupting official business at the Capitol, among other offenses that have become the boilerplate set lodged against anyone who walked into the building that day without authorization.

The Justice Department will soon be in the awkward position of having to defend such deals, even as trials and lengthy sentences for those facing more serious charges could be a year or more away. [my emphasis]

Politico makes this claim even though at least some of the expected pleas may be cooperation agreements. For example, Ryan Samsel — who breached the west side of the Capitol in coordination with Proud Boys Dominic Pezzola and William Pepe, knocking out a cop along the way — asked for a continuance to discuss a plea. One of the main Oath Keeper prosecutors, Ahmed Baset, asked for a continuance before indicting Oath Keeper associate Jon Schaffer, who was among the worst treated defendants and who agreed to the continuance in spite of remaining in pre-trial detention. Kash Kelly, currently charged with trespassing but also someone raised in discussions between Proud Boys affiliate James Sullivan and Rudy Giuliani, got a continuance to discuss a plea. Bryan Betancur, a Proud Boy who got jailed for a probation violation after he lied to his probation officer to attend the event, also got a continuance to discuss a plea to resolve his trespassing charges. The aforementioned Riley Williams, who was charged with obstructing the vote count and stealing a laptop from Nancy Pelosi, was filmed directing movement inside the Capitol, and has ties with Nick Fuentes, also got a continuance to discuss pleading before indictment. All five of these people likely have information that would be of use to prosecutors. All could limit their prison time (which would likely be significant for Samsel, who is accused of assault, played a key role in the insurrection, and has a criminal record) by cooperating with prosecutors. If any of these people sign plea deals — especially Samsel — it will likely provide new insight into how the conspiracy worked. Even with a plea deal, Samsel may still face a stiff sentence.

In other places, Politico conflates the discussions about the fate of misdemeanor defendants with discussions about detention (which prosecutors have only requested with a few accused trespassers), discussions about discovery, and Speedy Trial, all different things, many more urgent issues for misdemeanor defendants not included among those the story is purportedly about.

After I went on a rant about this story on Twitter, Gerstein defended the story by saying that people (none of whom were quoted in the story) seem to be surprised.

I agree with Gerstein that people have certain expectations. But that was clear before the end end of January. The record laid out here shows that such expectations did not come from Garland or Biden. Even Sherwin, with his totally inappropriate 60 Minutes interview, also explained from the start that DOJ was arresting the low hanging fruit at first while further investigating more serious suspects.

The fault, instead, lies with journalists, myself and these Politico journalists included, for not consistently and repeatedly explaining the various different roles people played on January 6, including that there were a number — though currently a shrinking fraction of the total set of defendants — who neither pre-meditated any effort to stop the vote count nor assaulted cops. I have tried to engage in this nuance (I included a list of such posts below), but given the sheer amount of court filings, much of the focus is currently on the militia conspiracies, suggesting a gravity that the MAGA tourists don’t merit. But in this article, rather than simply laying out the full range of defendants, describing how the MAGA Tourists played a key role in the success of the more serious conspirators (explicitly so for the Proud Boys, who talked about getting “normies” to do stuff they otherwise wouldn’t have done), describing how violence spread among participants and often as not among people who aren’t militia members, this Politico piece further distorts the record, not least by using this subset of “MAGA Tourists” — calling them “many” even though they represent just a quarter of defendants who have been formally charged — to stand in for the larger investigation, while minimizing the import of those charged with obstruction (likening that role to a CodePink interruption of a congressional hearing) because, evidence shows, they premeditated an attempt to undermine the election outcome.

So even while the piece describes how both judges and prosecutors understand that the mob as a whole posed a grave threat while some individual defendants did no more than provide cover for the more dangerous defendants (and many of the DC judges presiding over these cases have made such comments), Politico claims that there’s some embarrassment to this, including some kind of political risk for Biden.

Judges are also attempting to reckon with separating the individual actions of rioters from the collective threat of the mob, which they have noted helped inspire and provide cover for violent assaults, property destruction and increased the overall terror and danger of the assorted crimes committed.

That reckoning is coming sooner rather than later, lawyers say, putting prosecutors in the position of wrist-slapping many participants in the riot despite framing the crimes as part of an insurrection that presented a grave threat to American democracy.

If the MAGA tourists provided cover and helped overwhelm cops, thereby serving a useful role in the plans of those who had a more nefarious and organized purpose, then that’s the story that should be told, not some kind of both-sides political spin, particularly one that pits Biden’s claims about the seriousness of this on the footing as Trump’s outright lies about it. In spite of the overwhelming number of defendants, the record shows, DOJ is still assessing each one on the merits, which is what should happen. Declaring that politically embarrassing is an abdication of fair reporting on the legal system.

I believe DOJ has gotten it wrong, in both directions, in some cases. In addition to those listed above, I think DOJ has gone too harshly on some people who have openly supported far right, even Nazi views. But I also think DOJ has only considered whether militia members were members of premeditated conspiracies, focusing less on localized activist networks that have been implicated in violent (often anti-mask) pro-Trump actions in the past, taken on leadership roles at the riot, and engaged in ongoing communications about plans to shut down the vote, just like militias did. I think DOJ hasn’t come to grips with the organizational import of QAnon even while arguing that individual adherents of the cult must be jailed because they are delusional. And until DOJ decides how it will treat Trump’s actions and those of some close associates — something they likely cannot do without more investigation and cooperation deals from key participants — parts of this investigation will remain unsettled.

There are definitely things DOJ has reason to be embarrassed about: Gerstein has written more than any journalist about the unforgivable delays in moving defendants around the country and getting them arraigned. This piece also focuses on one of the handful of misdemeanor defendants who has been detained since being charged. While I understand the complexity of an investigation in which so much of the evidence — both exculpatory and inculpatory — remains in the hands of participants, defendants have a right to complain about the delay, especially those in detention. Defendants — particularly those in detention — are entitled to a Speedy Trial, even if DOJ moved too quickly to arrest them. While many of these things were exacerbated by COVID, they also largely arise from a decision to arrest first on those trespassing charges, and investigate later (which also has led to more defendants being charged with obstruction after the fact).

But none of those things have to do with Biden or Garland’s views about the investigation, or even the prosecutors who made decisions that created some of these problems in the first place (in part, probably, to avoid their own embarrassment at missing all warning signs, in part because they hadn’t investigated these threats aggressively enough and so had to make mass arrests to mitigate any immediate follow-on threats).

In short, this piece is an (uncharacteristic) mess, shoehorning complexity into a simplistic claim of political conflict, one inventing embarrassment out of thin air for Biden. If Politico has evidence that this wasn’t an unprecedented disruption to Congress, one that could have had a far worse outcome, including a threat to our democracy, or that this right wing violence is less of a threat than FBI says it is, by all means they should present that. At the same time, they can reveal the identity of the pipe bomber and the role (if any) that person played in the plot, without which no one can claim to actually know how serious this was.

Until then, they and all experienced DOJ beat reporters would be far better off by simply laying out a description of the different kinds of defendants we’re seeing, the different roles they played in disrupting the vote count and assaulting or undermining law enforcement, and explaining how those defendants are the same or different from defendants that have gone before them, on a spectrum of severity that stretches from CodePink to ISIS terrorists.

If people are going to be surprised when the subset of participants in January 6 who engaged in non-violent civil disobedience are treated as misdemeanor offenders, it’s not Joe Biden’s fault. It is a failure of journalism, my own included, for not making that more clear starting in January and reiterating it since then.

Update: Meanwhile, Jon Schaffer just agreed to two more weeks in jail.

Update: Corrected Munchel’s arrest date, which was January 10.

Update: Christopher Kelly (no relation to Kash) is another person with a consent continuance to discuss what would almost certainly be a cooperation agreement. He drove to and from the insurrection with some Proud Boys.

Posts attempting to contextualize the investigation

Here are some past attempts I’ve made at explaining how the parts of the January 6 investigation fit together:

75 replies
  1. bmaz says:

    The concept that the lesser players get ultimately dismissed, turned, or pleaded out is the least shocking thing ever. Of course they will. It is a feature of every large conspiracy case, and, as said previously, was always going to be so in this one.

    • Ginevra diBenci says:

      And far from being an embarrassment, this should be a political plus for Biden. The right (Tucker Carlson, et al) are screaming persecution over what they claim is mere “trespassing,” if that. If Biden’s DOJ makes it clear that no one is facing major prison time for minor crimes, that corrupt talking point might be undercut. (Never mind the hypocrisy of how Carlson and his ilk depicted BLM protesters.) This reinforces the need for a 9/11-style special investigation; currently, we are engaged in a battle royale over the truth of what happened that day and what led up to it; once those facts are established, Biden/Garland can position themselves on the side of whatever angels haven’t been shot out of heaven. The quality of mercy . . . You know, that.

  2. Ken Haylock says:

    I keep thinking about the stories I hear emanating from the American justice system of some 17 year old kid who lent his car to a relative thinking he was going to do something very slightly sketchy with it & ends up in prison for 40 years as part of a conspiracy to do whatever horrific crime the borrower was _really_ planning on doing with it…

    I’m not sure how if you were part of a flash conspiracy inspired by Trump to breach the capitol even as a ‘MAGA tourist’, when your presence was cover for the operatives with the sedition ambition, you don’t get the whole library also thrown at you for being part of that larger conspiracy, even if you didn’t know all the details…

    • bmaz says:

      Maybe quit listening to random stories in the wild and pay attention to how things really work under actual facts and law.

      • scribe says:

        That doesn’t mean the girlfriend’s getting 30 years for answering the phone and telling her boyfriend it’s that drug-dealing Floyd for you doesn’t happen. But even though it does happen it makes the news precisely because it is on the one hand pretty uncommon and on the other pretty severe.
        I do believe one should go back to the coverage in the period 1/6 through 1/20 and take a look at it. A lot of it was deeply emotional, emotion-driven and not very well connected to analysis. It is true that there were a near-infinite number of loose ends in that time frame all of which had to be investigated and so on. It is likewise true that the picture continues to clear up as time passes and the investigations continue.
        But when the feds go out, start busting people and keep them locked up as the worst thing since Osama Bin Forgotten only to find out they merit only trespassing charges, they deserve to have their purple prose called out and punctured.

        As it is, the Speedy Trial clock is running on a lot of them. At some point, the feds are going to have to put up or shut up.

        In that vein, to the extent the feds doing the prosecuting get embarrassed because they over-emoted, over-charged, over-sold or over whatever, that embarrassment is going to flow upstairs to whomever is sitting in the supervisory offices at the time it flows up, regardless of how blameworthy they are for what went on before, when they may not have even been in the chair. Part of the top jobs.

        • subtropolis says:

          It would be embarrassing had the DoJ elected to charge every participant in the harshest terms — seditious conspiracy for everyone, whether a militia member or just some Fox-addled dipshit there for the ‘gram. But they haven’t done that, because they are not stupid. They have fuck all to be embarrassed about. It’s many members of the Press who ought to be re-examining their own approach to this.

  3. earlofhuntingdon says:

    Surprising that these reporters – or their editors(s) – spend so much effort to frame their story as a potential embarrassment for a president who was not in office when this “heinous” attack occured, and when he is just beginning to staff the DoJ that might prosecute any crimes committed during it.

    Then there’s basic logic. An attack can be heinous without the conduct of all of those present being criminal or a felony meriting prison. It’s a basic distinction a reporter should always make. Criminal liability is specific and depends on what the DoJ can prove beyond a reasonable doubt about the behavior of each suspect. Otherwise, you engage in collective punishment, which would be heinous – and a war crime.

    Is this an editor looking for a scandal, finding none, and going with it anyway?

    • John Mc says:

      I’ve always loved Charlie Pierce’s descriptive snark on Politico:
      “Politico, aka Tiger Beat on the Potomac, manages on a regular basis to cover the worst of our politics through the worst of our political journalism. It is a remarkable parlay to have achieved.”

      • bmaz says:

        And, yet, Josh Gerstein is as consistently fine of a law reporter as I know in the press, and very long has been.

        And still blown away that you were there for the Clark tragedy.

        • BobCon says:

          I think Politico has gotten a bit better since the Axios breakaway siphoned off some of the worst instincts. The biggest problem remains at the editorial level, both in terms of the assignments and the framing. Solid big picture reporting can break through that, but like the NY Times and NPR and other parts of the DC establishment, the overall editorual bias puts a thumb on the scales in favor of some dumb narratives.

        • John Mc says:

          Spent a lot of time at Hockenhein when I was stationed in Heidelberg in the 60’s. Raced my Healey 3000 in Production D there many a weekend. Just watching that day only because Clark was driving and he was such a hero to all of us. Unbelievably sad day for racing…

          • bmaz says:

            Very cool on racing the Austin Healey. My friend Scott Greenfield still has one, and still takes it out and about regularly. Less so in the winter, but made an exception when I was in NYC during Christmas a few years ago. It is a beautiful car.

            • earlofhuntingdon says:

              Big Healys are special, though you could measure their road clearance with a pair of tweezers. Affordable British sports cars went down hill after they stopped producing them.

                • blueedredcounty says:

                  Joke I heard from college friends back in the 80’s:

                  Why do Brits drink warm beer? Because Lucas makes refrigerators, too.

                • earlofhuntingdon says:

                  Now, at least, those cars are popular enough survivors that an industry exists to rebuild them to a better performing, if not modern, standard.

                  West Coast British specializes in MGB. Acme Speed Shop in South Carolina specializes in MGB and Triumph engines. Goodparts specializes in TR6 parts and Wishbone Classics in Syracuse in TR6 engine rebuilds. Hoyle Suspensions and Frontline Developments are in the UK.

                  • earlofhuntingdon says:

                    Yep. Reminds me of the Morgan used by Peter Guillam in the 1979 Tinker, Tailor. Those cars were weekenders for the commute-by-rail set in the home counties. They were never meant for modern roads or for long or daily driving,

                    I love Brit cars and a few classic 1960s cars: a clean early Mustang or a ’67 Chevelle 396 with a few mod cons: suspensions, brakes, and fuel systems.

                  • Valley girl says:

                    I’ve no experience driving power cars. But my office mate in grad school would occasionally hand me the keys to his MGA and tell me to go have a drive on Hwy 9. Top down of course. Good days.

                  • earlofhuntingdon says:

                    Your friend will have the addresses and telephone numbers for these guys memorized, but the traditional larger suppliers are Moss Motors in the US/UK, and Rimmer Bros., and Revington TR in the UK. There are several others in the US, some of which have gone by the wayside.

                  • dimmsdale says:

                    Presumably friend is a member of a marque club? I never drive anything flashier than the No. 1 Broadway Local, but nonetheless belong to a club catering to Brit car enthusiasts; their annual beach concours event is a big celebration–the enthusiasm and knowledge contained therein could get your friend’s part installed in a jiffy, especially if it should turn out to not “quite” fit without some old-soul wizardry.

                  • Leoghann says:

                    Owning a TR-4 in West Texas in the late Sixtes is how I learned to be a mechanic while in high school. The parts were easy enough then, although both BAP in Fort Worth and EAP in El Paso were three hundred miles away. But there was no one any closer to Midland who could, or would work on it. And my tendency to compete in it for speed and agility ensured that lots of repairs were necessary.

                    • bmaz says:

                      There used to be a BAP here. But they had, or had access to, parts for Porsches and Japanese cars like Z’s too, not just British ones as their formal name would imply. Bought a lot of MacPherson struts and other parts there. Think gone now, but maybe still around in a single location somewhere.

    • emptywheel says:

      Not actually a good comparison, as DOJ had no business charging some of those federally (which is different from saying it wasn’t a state crime), but Billy Barr wanted to happen. There are some defendants accused of assault that might be similar. But not all that many. Plus, much of this can only be federal jurisdiction.

  4. Marshall says:

    “You claim the event was a conspiracy, these people participated in the event, you aren’t charging them with conspiracy, therefore you agree there was no conspiracy. It was all (possibly) misguided patriotism.”

    • bmaz says:

      Nobody here said that, despite your dishonest quotation marks, and such is complete garbage.

      • John Colvin says:

        I do not think that Ken Marshall was suggesting that anyone here was making the argument set out in quotations. Rather, I think he was postulating that some members of the right might make a similar (dishonest) argument if and when charges against some of the participants are dismissed.

        • earlofhuntingdon says:

          Perhaps they should have said that, rather than submit an unexplained quote. Ambiguity is legitimately interpreted in a manner adverse to the author who introduced it.

  5. Krisy Gosney says:

    Thank you for this reporting. It’s these kinds of posts that keep me coming here every day to read every new word. Regarding Politico, I’m not well versed in each of their main reporters but I have, in the last year, stopped reading the blog because of what you’re highlighting here. To me, more posts were given an anti Democrat slant than not. So much so that I began to doubt their truthfulness. The posts could have been mostly truthful but the slants were mostly dishonest.

  6. Summertime Blues says:

    This reminds me of the “Biden hasn’t had a Press Conference” non-scandal. There is so little drama and scandal associated with the Biden White House it has to be manufactured. It’s not unreasonable to expect the next Meta will be the guilt by association coverage. Someone Biden is in contact with will be implicated in something, and of course there will be extensive coverage until until the next news cycle. Rinse and repeat much like the Reverend Wright, Tan Suit ad nauseum faux outrages during the Obama administration.

  7. P J Evans says:

    I’d be surprised if Biden isn’t much more embarrassed by criminals being freed by the (usually local) justice system solely because they’re LEOs.

    • bmaz says:

      No. If they are federal charges, it is not a “local” justice system making release determinations, it is federal. And release should ALWAYS be presumed over blithe detention pre-trial. And that has absolutely nothing to do with Biden. In fact, if there is any “embarrassment”, it ought be over the nonsensical DOJ determination to remand without release/bail so many defendants.

      • P J Evans says:

        Federal charges, federal courts – but it should apply to all courts, AFAICT. Misdemeanors don’t deserve much more than fines.

        • bmaz says:

          There is a vast difference in between federal and state/local courts. Misdemeanors in either certainly can, and commonly do, lead to incarceration upon conviction. But, yes, the reduced nature of it is exactly Marcy’s, and my, point. The smaller fish were always going to get cut off from the bigger ones. The Politico story is pretty much a non-story.

            • ducktree says:

              My older brother’s favorite expression while taunting me during our childhood was, “don’t make a federal case out of it.”

              How did he know at that age (and this was in the 50’s-60’s)?

              • Troutwaxer says:

                It’s a very old thing to day. I heard the same from my dad (and I’m well-over fifty.)

            • StuartC says:

              Not only is he not a fool, Biden is the damn smartest democratic politician I’ve seen for decades, maybe ever, and I’m 64. Getting elected, holding the left of center, the reaching out across the aisle to the right, yet moving along when they dither as usual. It’s just brilliant politics. His approach and thinking so closely matches the majority’s needs of our country so well. And luckily for us, he really seems to be as compassionate, caring and dedicated to helping all Americans as he presents, it’s not just all photo-ops and scripted fairytales from spin doctors. He’s so boring and competent, the best clickbait media can come up with, is – “it’s not going fast enough.”

  8. yogarhythms says:

    Good reporters get it wrong. History: I was one of many occupiers in 60’s Nor Cal Non violent civil disobedient protestor’s that disrupted and occupied Stanford University offices. We sat down inside the buildings our numbers disrupted/halted University classes/business. Our stated purpose was civil disobedience nonviolent disruption and occupation. We collectively wanted to halt University business as usual in protest of University’s institutional support of SE Asian war. 2021 Jan 6 occupiers were not non violent quite the opposite as violence ,not friends inside opening, broke barricades and doors and windows to gain entrance. Occupation of capitol clearly disrupted/halted business but, and this is the most important distinction between historical non violent civil disobedience and 2021 Jan 6 insurrectionist occupiers, the insurrectionist wanted to overthrow the government and replace established governmental order with their unelected leader forming a new government not based in constitutional norms instead based on revolutionary insurrection and occupancy. The level of revolutionary violence to overthrow a government weather masked as tourist or shaman is neither civil or non violent.

    • emptywheel says:

      I agree that’s what distinguishes the obstruction charged here from what CodePink does. But I also think there may be legal problems with using that charge on these cases.

  9. Wm. Boyce says:

    No doubt a sticky wicket, as EW has pointed out many times, the story is still developing. My hope is that law enforcement does a good job of bringing the murderers (that’s what they are!) to justice. Thank goodness the creature’s administration is a bad memory.

  10. John Lehman says:

    “Reverend Wright”
    What a bunch unjust pearl clutching b.s…
    ..hackles still rising from it…totally with malignant purpose were the Reverend‘s words dug up and twisted out of context….oh Lordy get mah smelling salts ahm a gonna faint…

    …”frankly mah dear, I don’ give a damn”…

  11. Eureka says:

    This heart here:

    I believe DOJ has gotten it wrong, in both directions, in some cases. In addition to those listed above, I think DOJ has gone too harshly on some people who have openly supported far right, even Nazi views. But I also think DOJ has only considered whether militia members were members of premeditated conspiracies, focusing less on localized activist networks that have been implicated in violent (often anti-mask) pro-Trump actions in the past, taken on leadership roles at the riot, and engaged in ongoing communications about plans to shut down the vote, just like militias did. I think DOJ hasn’t come to grips with the organizational import of QAnon even while arguing that individual adherents of the cult must be jailed because they are delusional. And until DOJ decides how it will treat Trump’s actions and those of some close associates — something they likely cannot do without more investigation and cooperation deals from key participants — parts of this investigation will remain unsettled.

    I bolded one of the bigger pieces that’s been neglected to our peril, and of which I’ve been preoccupied from the start. The anti-masker/ -vaxxer/ reopen/ pro-Trump protests, too, are such huge ramifying parts of the organizing flux-and-forth.

    The PBs, OKs, 3%ers, more-local WN groups, and all congregate (send a member or two) and pick up or embolden folks at those rallies, besides that the PBs, OKs, 3%-ers all commingle at their own rallies over the years (which is why it’s no stretch for them to be organizing for the Capitol: they’ve co-organized a lot before, mixing and traveling in support of each other). One of the PB leaders, up to ~nanoseconds before he IDed as a PB, fronted an “intermediate” type group (IMO a soft front/ entry with a socially-acceptable sounding name) and hosted rallies inviting a range from ‘regular’ patriots to named militias. My impression from news events is that this effort melted as Trump(-ism)/Stone elevated the PBs (and WN more generally, to virtually no societal consequences) — as we got used to hearing about them more, some decloseted.

    And yet some of these local groupings grew and kept together, trusted each other, didn’t want to become, say, (members of) a branch of one of the named, national groups. [Aside: I half wonder if some local/state govs are loosening restrictions ahead of CDC guidance and the pace of vaccination to forestall a spring invigoration of these groups.]

    There’s a lot to learn in how some of these local satellites maintain their identities while dancing with members of the more formalized groups. All politics is zeitgeist. While none of the elements you listed is severable, their distinctnesses may hold keys to a way out.

      • Eureka says:

        Yeah I was thinking of that/them; the NJ Atilis Gym antivaxxer gal (and the threepers & the more obscure NJ WN group who’ll remain unnamed who attended the protests); the Pink Hat Lady aka Bullhorn Lady (after she was arrested and we found out she had eight kids, her initiative in giving organizing instructions on how to work together all made sense); some others.

        Kind of mind-blowing to contemplate what would have happened absent (reactions around) COVID-19 and filmers/cameras to show Floyd’s murder/elevate others. Guess the Trumpers would have made it (their WN fire) about immigrants.

  12. timbo says:

    Yes, thanks so much for this timely article. I’ve been away from this site for a few days and it’s always good to see good reporting and analysis like the article here.

  13. Zeke says:

    I don’t recall how soon after Politico launched that I came to the conclusion that it was hot garbage, but it was relatively early (not living in the US makes it easier to tune out the noise). That being said, the idea that it would be “embarrassing” if thousands of people who committed criminal trespass were not incarcerated along with the Dominic Pezzola’s, etc., of the day seems like an odd conclusion to draw.

  14. Leoghann says:

    Kash Kelly needed time to discuss a plea, at first, because he was on supervised pre-sentencing release on a federal drug case out of Illinois. He had apparently been in business with some Chicago-area members of the Latin Kings, turned states’ evidence after he was arrested, and was just waiting for the final approval of a deal that would have given him only 12-18 months. Then he sneaked off to DC for 06 January and got arrested. A week or two ago, his judge, who was furious about his participation in the insurrection, sentenced him to four years, and reminded him at sentencing that any time he got for his insurrection activities could be required to be served after his drug sentence was completed. He is obviously a young man whose life is remarkable for his terrible choices.

    • emptywheel says:

      Yeah, it was insanely stupid for him especially to do this. But he was treated as a member by the right wing, so maybe he believed it would get him impunity. Or maybe he believed he’d get a pardon from still-President Trump if the insurrection worked.

  15. vvv says:

    I feel like I have known from the beginning of the post-insurrection analysis (and not before) that there were some involved who were of lesser stature and lesser malfeasance and thus deserving of lesser penalty, just as I have known from the beginning of the post-insurrection analysis (and not before) that some of the detainees would be and should be promptly pre-trial released.

    I’m not a criminal law guy – I learned this from Dr. Wheeler and bmaz, Esq., at the beginning of the post-insurrection analysis from the excellent reporting and discussion herein, and I have seen it re-reported and re-discussed such that I did not miss the import.

    Thank you.

  16. Silly but True says:

    Empty Wheel has nothing to apologize for on this particular discussion. The Jan. 6 articles and associated discussion have generally included nuance of role and peril of “MAGA tourists.” Neither does DoJ; they were leaking this fact of their internal deliberations weeks ago.

    The universe of the worst offenders is about 800ish of 70,000, with the “ish” including possibly conspirators who are the worst despite not assaulting or entering but orchestrating and commanding. But anyone who remotely knew emerging details of Jan 6 already knew this was likely possibility.

  17. Frank Probst says:

    Dumb question from a non-lawyer: Would/could misdemeanor trespassing pleas be expunged from someone’s criminal record after a certain period of time, assuming good behavior? I really only know about traffic tickets, which are state or local, so I have no idea how this works. For many people, having a record of a 1/6/21 trespassing charge at the US Capitol will haunt them for a LONG time. While it’s obviously nowhere near as serious as being a registered sex offender, even a trespassing charge could close a lot of doors to you for the rest of your life. It isn’t going to be your regular “just a misdemeanor”.

    • emptywheel says:

      As Politico said, some of the misdemeanor defendants may get diversion. But yeah, for those found guilty, it’ll be a pricey misdemeanor until the GOP rules as a single party state, in which case they’ll become heroes.

      • bmaz says:

        Note that, seems like forever, there was no recognized diversion in federal court, once in a blue moon you could get a pocket diversion with a friendly prosecutor before charging. Think I got exactly one of those in all the years.

        Now, however, there is a process set out to allow it. It is completely at the discretion of DOJ prosecutors, but is usually done pre-charging. Here is the pertinent language:

        9-22.010 – INTRODUCTION

        Pretrial diversion (PTD) is an alternative to prosecution which seeks to divert certain offenders from traditional criminal justice processing into a program of supervision and services administered by the U.S. Probation Service. In the majority of cases, offenders are diverted at the pre-charge stage. Participants who successfully complete the program will not be charged or, if charged, will have the charges against them dismissed; unsuccessful participants are returned for prosecution.

        The major objectives of pretrial diversion are:

        To prevent future criminal activity among certain offenders by diverting them from traditional processing into community supervision and services.
        To save prosecutive and judicial resources for concentration on major cases.
        To provide, where appropriate, a vehicle for restitution to communities and victims of crime.
        The period of supervision is not to exceed 18 months, but may be reduced.
        9-22.100 – ELIGIBILITY CRITERIA

        The U.S. Attorney, in his/her discretion, may divert any individual against whom a prosecutable case exists and who is not:

        Accused of an offense which, under existing Department guidelines, should be diverted to the State for prosecution;
        A person with two or more prior felony convictions;
        A public official or former public official accused of an offense arising out of an alleged violation of a public trust; or
        Accused of an offense related to national security or foreign affairs.

        • Rugger9 says:

          As noted above, much of the value for charging these jamokes is to establish the pattern for future reference. It’s a key part of the First Law of Dirtballs I used in the USN: they’ll always give you another chance to discipline them.

          I’m glad pardons / commutations would be required to remove the consequences (if they do) which precludes doing these deeds quietly. “Dinesh D’Felon” never gets old as a description (and D’Souza hasn’t changed his tune, either).

          As always, it’s good to have actual lawyers to show what is feasible as opposed to what is desired / demanded. We need these charges to stick.

          OT, it seems M. McCain on The View went off on Swalwell again, conveniently ignoring the past Secretary of Transportation (McConnell would be forced to resign under that McCain rule), as well as Devin Nunes, RoJo and the rest of the Russian footsie players, but IOKIYAR covers everything.

        • Leoghann says:

          This appears to be what they’re working on for “Lifetime Oath Keeper” Jon Schaffer.

  18. laMissy says:

    It seems to me there are several orgs that are suffering from clickbait withdrawal. The Former Guy brought that ish several times daily. I thought the Politico headline (which is often out of the hands of the author) was egregious and the story which accompanied it far less damning than advertised.

    Of course, that’s because I read every Emptywheel post and comments repeatedly and carefully. Thank you for your work!

  19. Savage Librarian says:


    Falling prey to what circumvents
    the integral Paine’s Common Sense,
    We rely on media correspondents
    to help fortify our national defense.

    We the people, with our two cents,
    are called upon to brook suspense,
    Doubting those who sit on the fence,
    We seek the honest turn of events.

    Who screams uncle, who relents,
    Who seeks revenge and who repents,
    Who affirms and who dissents,
    Who gives thanks and who laments?

    With all its dings and all its dents,
    With all its context and contents,
    From precedence and going hence,
    Our ideal still does remain immense.

    • rip says:

      Oh, our Librarian, sauvage and intense.
      What you penned does make some sense,
      To this numbskull who’s oft labeled dense.
      But I worry about our future tense,
      If we are there and can enjoy the expense,
      Of all this god-damned stupid nonsense,
      That has been hoisted on us by dump and pence…
      And all those greedy bastards – don’t know a rhyme here.

      • Savage Librarian says:

        “don’t know a rhyme here”

        …and malcontents?

        LOL. Yeah, this was not one of the better ones I’ve tried. But it’s still therapeutic. Don’t you think? Nice work, rip!

        • Eureka says:

          CLAP. CLAP. CLAP.

          Teamwork makes the dreamwork: brava, bravo, brava.

          And bravo (shoulda kept scrolling for timbo’s topping).

    • timbo says:


      “‘Caught in the crime was I by maid sublime:
      Ah, me, a meter, and to rhyme—
      I double parked, without a dime!’
      Thus was I hoosegowed by Judge Divine…
      And got no time off for good behavior”
      —A Poor Man’s Paradise Lost

  20. subtropolis says:

    I, too, respect both of those journalists, but my first reaction to seeing the headline and teaser was to think it was something from the New York Post. Thank you for this. You’ve clearly laid out the multiple ways in which their article “strayed from the facts”.

    Although it was big of you to include yourself among those journalists who’ve fucked up their reporting on this, I do not accept it. You’ve been clear-eyed on it from the start: There’s the mob, and then there are those who made use of them.

    • Ginevra diBenci says:

      I agree, subtropolis. I knew Politico’s reporting on this was warped *because* I had read every one of Dr. Wheeler’s posts, which had made it more than clear how DOJ’s various charging decisions were made, and (to the extent we outsiders can divine) why.

      Politico did not just blur the facts. They got the politics wrong too. Biden and the Garland DOJ need to publicly *embrace* this prosecution strategy, if for no other reason (like, say, law/justice) then to counter the narrative I see infecting the alt-right chat rooms: that Communist Chinese puppet Joe Biden is using the government to round up “patriots” and strip them of their freedoms. This would make a powerful rejoinder. It’s past time to own the narrative.

  21. Spencer Dawkins says:

    Doctor Wheeler,

    “The fault, instead, lies with journalists, myself and these Politico journalists included, for not consistently and repeatedly explaining the various different roles people played on January 6, including that there were a number — though currently a shrinking fraction of the total set of defendants — who neither pre-meditated any effort to stop the vote count nor assaulted cops.”

    I’ve read those explanations, especially from you, and I agree that it’s easy to lose track of them.

    I have a question, based on the timelines you so often include in large, multi-person, multi-day event investigations.

    Is it possible for you, or one of your collaborators, to keep a spreadsheet up to date, of who has been indicted, and which category they seem to fall into, that you can cut and paste at the bottom of every January 6th-category article you publish here?

    That might help the rest of us keep focused on who, and how many, are tourists, Proud Boys, Oath Keepers, 3-Percenters, and whatever other categories you find useful to maintain.

    And if that’s not realistic, my apologies for non-helpful suggestions. You would know best, of course.

  22. Savage Librarian says:

    A shout out to you, Marcy! Thanks for all your fine work and for continuing to keep us well informed. We benefit immensely. I am grateful for all that you do!

Comments are closed.