On the fundamental issue of the election, McCarthy thinks that Biden won. Some of us here disagree quite a bit. That does not stop this from being a serious article, well worth the reading.
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What the Capitol Riot Prosecutions Tell Us
By ANDREW C. MCCARTHY
June 12, 2021 6:30 AM
The office of the United States attorney for the District of Columbia has a “Sedition Task Force” focused on the January 6 riot . . . but it doesn’t have a sedition case.
Federal prosecutors haven’t charged any terrorism offenses, but, as a rationale for denying one defendant bail, they are trying to convince a skeptical federal judge that by damaging a doorway in forcing her way into the Capitol — a crime often treated as a misdemeanor, and for which the maximum sentence is just ten years — she committed a “crime of terrorism.”
Let’s be real. With due respect to Attorney General Merrick Garland, the Capitol melee is by no stretch of the imagination the greatest threat to our democracy in living memory. It is not 9/11. It is not the Boston Marathon bombing. Indeed, the June 14, 2017, Washington baseball field shooting spree, in which a radical leftist tried to mass-murder much of the Republican congressional delegation, bore more hallmarks of a terrorist attack — albeit one that, like the deadly Black Lives Matter riots of last summer, the media-Democrat complex always remembers to forget.
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On the other hand, January 6 was not nothing. Far from it. Many Trump fans recall it as a rally that got a tad rambunctious, featuring gaggles of patriotic septuagenarians who wandered into the halls of Congress — waved in by the security forces, in fact — swept away in the heat of the moment . . . or just harmlessly curious to see what all the commotion was about.
There was some of that, sure. But it’s a distorted picture.
The Capitol was breached — not destroyed or significantly damaged, but there was forcible entry, vandalism, and some theft of government property. It was not a spontaneous outbreak. The vast majority of people were peaceful protesters, but there were many who came ready to rumble, trained and outfitted to use force — though to what end, besides disrupting Congress, is not clear. No one was killed except one rioter, but there were assaults of police resulting in non-trivial injuries, and security forces had to evacuate then–Vice President Pence and members of Congress.
It was a national disgrace . . . and President Trump is singularly responsible for its occurrence, even if his conduct — contrary to his detractors claims’ — did not amount to the federal crime of incitement. As we shall see, the fact that the president of the United States was the instigator is complicating the case for prosecutors.
Security Forces ‘Overwhelmed’
It is impossible to know the size of the throng that, at then-President Trump’s repeated urging, attended the “Save America Rally” on January 6. NBC News roughly estimates a crowd of 30,000. Some claim there were more, even tens of thousands more. Whatever the total was, a subset of some thousands marched to the Capitol complex, also at the exhortation of the president — who promised to march with them but did not.
Of these, a sizeable number, probably several hundred, overwhelmed security forces, as the government and media reporting commonly put it. Overwhelmed is a loaded word. The security forces were not massacred, as one might assume when words like “terrorism,” “sedition,” and “insurrection” are being bandied about. In this instance, some police were assaulted, but what “overwhelmed” mainly refers to is a sheer numerical imbalance that made it impossible for police to hold the crowd back — to the point that hundreds of people may credibly claim that, by the time they entered the building, there was no apparent bar against doing so.
As a Senate report released this week relates, the U.S. Capitol Police’s deployment of forces, its training, equipment, preparations, and communications, were grossly inadequate. The USCP was ill-informed by government intelligence agencies and, for too many hours, unsupported by government military forces. By comparison, approximately 50 of the rioters had military training, including special forces training. Some of them — particularly, those connected to the Oath Keepers organization, which makes a point of recruiting veterans — are alleged to have used military advance maneuvers to storm the building.
This element of the mob that catalyzed the uprising included scores of Trump supporters who arrived prepared and spoiling for a fight. It is hard to estimate how many fit this description.
The Justice Department maintains a webpage cataloguing the people who have been charged and the offenses lodged. CBS News reports that, as of this week, about 465 have been charged. Unnamed government sources estimate that there could be another hundred defendants by the time all is said and done.
Attacks on Police
Testimony in the Senate investigation and other reporting indicates that over 150 police were injured to some degree. According to CBS’s tally, 130 defendants have been charged with some form of “assaulting, resisting, or impeding officers,” including 40 charged with “using a deadly or dangerous weapon or causing serious bodily injury to an officer.”
These numbers can be deceiving.
On the one hand, even if some of the 130 charged are innocent, it is highly unlikely that the government has successfully identified every assailant — there could be more than 130 guilty parties. On the other hand, the threshold for what it takes to “assault” a federal officer is very low. In one of my first trials as a young prosecutor, the defendant was convicted because he clenched his fist in a menacing gesture, making his probation officer flinch. That’s it. And resisting and impeding present even lower-proof hurdles for conviction than assault. Moreover, police officials and their union have a motive to exaggerate the number and extent of injuries — 150 could well be an inflated figure.
There have been reports of severe injuries to cops, including broken bones. As I’ve previously recounted, the government alleges that a number of police were sprayed (some rioters had firearms, but bear and pepper spray seem to have been the weapons of choice). It is, of course, a serious matter to assault an officer with toxic aerosol, and people who did it should do prison time. But this does not seem to have caused severe injuries (one complaint, for example, says spraying sidelined three police for about 20 minutes).
It is estimated that about 17 police are still out of work due to injuries sustained in engaging rioters. That said, the media continue to speak of three police officers who died in the aftermath. That is deceptive.
One of the three is Officer Brian Sicknick, whose death we at NR have covered extensively. He died of natural causes (stroke). There is no evidence that the riot had any causative connection to his passing. Although two defendants have been accused of assaulting him with spray, his death is not even mentioned in the complaint, much less cited as the basis for a homicide charge. In addition, two other officers involved in the riot response have since committed suicide. That is tragic, but there is again no proof of a causal connection to January 6. Sadly, the profession of policing experiences a higher incidence of suicide than other professions. In 2019, the Addiction Center reported that police suicides annually run three times higher than fatal injuries in the line of duty.
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The media would not have to keep disingenuously tying fatalities to the Capitol Riot if it were really on par with a terrorist attack — say, the Boston Marathon bombing, in which the three people who died were actually killed by the terrorists, to say nothing of the scores of others maimed and otherwise injured.
Only one death can truly be said to have been caused by the January 6 violence: that of Ashli Babbitt, a 35-year-old pro-Trump Air Force vet, who was shot by security forces as she allegedly attempted to breach doors leading to the House Speaker’s offices. After an internal investigation, the Justice Department determined that Babbitt’s killing was justified, and no action was taken against the officer who shot her.
That certainly appears to be the correct result. Nevertheless, it is remarkable that the government has refused to identify the officer involved, despite pleas from Babbitt’s family. Don’t get me wrong — I am all for protecting police who make righteous, split-second use-of-force decisions under enormous pressure. But I would protect them in all cases. Ask yourself: Is it conceivable on this planet that a police officer who justifiably shot and killed a Black Lives Matter rioter, or an African-American criminal suspect such as Michael Brown, would have his identity protected by the authorities, and with muted media reaction?
Exaggerating the Threat
Regardless of how many rioters it took to overwhelm security forces, hundreds of Trump supporters exploited that situation to enter the Capitol, disrupting and delaying Congress’s counting of the state-certified electoral votes, the totaling of which would confirm that Joe Biden won the presidency.
Just as initial reports recklessly claimed that Officer Sicknick was brutally killed by rioters, federal prosecutors in the week after the breach alleged that there was “strong evidence” that Trump supporters planned to “capture and assassinate elected officials.” This seems to have been an overwrought inference drawn from a note left at then–Vice President Pence’s Senate desk, which stated, “It’s only a matter of time, justice is coming.” The note was apparently written by Jacob Anthony Chansley (a.k.a. “Jake Angeli”), the goofy, shirtless “QAnon Shaman,” whose costume — complete with coyote-skin headdress, topped with buffalo horns — makes him the face of the riot (unless you want to award that shameful distinction to Kevin Seefried, the genius depicted carrying the Confederate flag through the halls of Congress).
The government almost immediately withdrew its hyperbolic allegation. Michael Sherwin, then the acting U.S. attorney (he was replaced by the Biden administration in March), conceded that investigators had “no direct evidence at this point of kill, capture teams.” There has also been no shortage of reporting that some rioters chanted, “Hang Mike Pence,” and the Associated Press breathlessly suggested that a rickety gallows symbolically erected by some rioters a good distance from the Capitol may have been intended for Pence. But, nearly six months later, no one has been charged with any murder plots. Nor is anyone likely to be.
Conspiracy . . . to Do What?
Of a piece with the Democrats’ “insurrection” mantra, press reporting about January 6 prosecutions tends to be overblown. For example, several reports stress that prosecutors have filed conspiracy charges. Conspiracy is another loaded word, which always sounds serious, at least to the uninitiated. For those of us in the biz, though, it prompts the question, “Conspiracy to do what?”
A conspiracy is just an agreement between two or more people to commit a crime. Any crime. Could be murder . . . could be running a numbers racket . . . could be something in between. Patently, then, the crime the conspirators were of a mind to commit is of greater consequence than the fact that they agreed among themselves to commit it.
In the context of domestic terrorism, there are a number of conspiracy charges one might expect to see. Conspiracies to bomb or use mass-destruction weapons carry life penalties, or even the death sentence if victims are killed. Seditious conspiracy, the charge that best fits plots to make war on the United States or forcibly attack the government, carries a 20-year potential prison term.
The government hasn’t charged anything like that. The media accounts that invoke conspiracy tend to leave unmentioned that the conspiracy charges are brought under the catch-all conspiracy statute that can apply to any federal crime, no matter how trivial. It prescribes a maximum penalty of five years, with a possibility of no time at all — which seems a tad inadequate for “insurrection,” wouldn’t you say?
Is that just a placeholder? Is sedition coming? Maybe . . . but I doubt it.
Here’s why. When acting U.S. attorney Sherwin was relieved in mid-March, he quickly missed the thrill of feeling relevant, so he got himself booked on 60 Minutes and intimated that sedition charges were coming soon. This irresponsible leak of nonpublic investigative information sent Judge Amit Mehta into orbit, and rightly so. The judge admonished prosecutors and expressed hope that DOJ was looking into whether ethics sanctions were warranted.
Over the next month, sedition charges did not materialize. Yet there was a critical development: The first guilty plea with cooperation from a major figure in the investigation, Oath Keepers founder Jon Ryan Schaffer. As some may recall from my discussion of this subject during the Mueller probe, when prosecutors are contemplating a big conspiracy indictment, the time to pounce is when the first big cooperating accomplice pleads guilty. Routinely, the government gets the cooperator to plead guilty to the conspiracy and implicate others in it. If you’re trying to prove seditious conspiracy, it is a tremendous boost to have a key participant say, under oath, “There was a seditious conspiracy, I was in it, here’s what I did, here’s what my confederates did,” and so on.
Schaffer, however, did not plead guilty to seditious conspiracy. Prosecutors had him admit to two charges: (1) obstructing a congressional proceeding, and (2) trespassing on restricted federal grounds while armed with a dangerous weapon — namely, bear spray (which there is no claim that Shaffer used).
As is typical with media coverage of the Capitol riot, the darkest spin possible was put on this development: Schaffer could face up to 30 years’ imprisonment. Well, that’s true in the technical sense that the statutes carry potential penalties of up to 20 and ten years, respectively. But they also carry a potential penalty of zero time.
More relevant than the expanse of statutory exposure that applies to all classes of offenders is the federal sentencing guidelines range that applies specifically to Schaffer. In the plea agreement, he and DOJ agreed that his range is 41 to 51 months — i.e., possibly less than three-and-a-half years, and even less than that if he gets credit for cooperation. Not a very stiff sentence for a prime mover in an “insurrection” that the Biden administration portrays as the Crime of the Century.
Why No Seditious Conspiracy? The Trump Complication
Now, it so happens that I prosecuted the last big seditious-conspiracy case in the United States, the 1995 terrorism prosecution of the Blind Sheikh’s jihadist cell, following its bombing of the World Trade Center and subsequent plot to bomb New York City landmarks. Being intimately familiar with the seditious-conspiracy statute, I must say that, if all prosecutors had to do was prove actions, there would easily seem to be sufficient evidence to charge several rioters with it. While the law has gradations of culpable behavior, conspiracies to (a) oppose the authority of the government by force, and (b) forcibly prevent the government from carrying out the laws, are actionable. Forcibly entering the Capitol to hinder a constitutionally required proceeding to count electoral votes would seem to check both those boxes.
Of course, it is not enough to prove actions. Prosecutors must establish beyond a reasonable doubt that the defendant had the required criminal intent.
Our sedition law is designed to address conspiracies formed by anti-American enemies to attack our country and its government in an unambiguously hostile and violent manner. The terrorists I prosecuted, in the course of plotting and conducting mass-murder attacks, were willfully at war with the United States and said so unabashedly. That is not true of the January 6 rioters.
We have never had a sedition case in which the accused plausibly believed they were acting at the behest of the president of the United States, who had convinced them that there had been a coup against the government and the Constitution.
When Schaffer pled guilty, he elaborated that he believed the election had been stolen from Trump. In the then-president’s inflammatory speech at the Ellipse right before the riot, he exhorted the crowd that they needed to “fight” for their country because it was being stolen. In context, Trump was not urging a literal, physical fight. He was invoking common political rhetoric about the need to oppose and resist partisan foes, and he paid lip-service to the notion that protest should be “peaceful.” But he did it, with all the perceived majesty and authority of his office, as the culmination of a two-month campaign in which he accused his opposition of massive fraud and election-rigging, and insisted that Vice President Pence and Congress had the authority to prevent what would otherwise be the theft of the presidency.
The evidence outlined in the complaints and indictments filed shows that the defendants truly believed what the president was saying. They saw themselves as going to Washington that day, from all over the country, because Trump encouraged them to do so. They saw themselves as members of militias who could be called into service by the president because “deep state” government insiders were undermining his authority. In sum, they did not see themselves as at war against the United States; they saw themselves as at war on behalf of the United States, at the summons of the duly elected president to put down a coup.
Understand: When we’re talking about the criminal intent, we’re talking about what the accused believed. That it was untrue is beside the point. That Trump may not have wanted the protest to become violent (even if he did not seem too terribly upset when it did), is also beside the point. The only point is that we have never before had a sedition prosecution in which defendants could credibly argue that they used force against a government facility because they believed that was what the commander-in-chief of the U.S. armed forces was urging them to do.
Under the circumstances, it makes sense for the Justice Department to do what it is doing — stay out of the sedition morass; instead, charge interference with congressional proceedings, trespassing with dangerous weapons, and, where appropriate, assault on federal officers. These are straightforward charges, they do not have intent-proof complications, and they carry more than enough potential prison time to punish the level of malfeasance that happened here — which was bad, but was not terrorism. Remember, Congress was able to reconvene in the Capitol that very night. This was not a massive attack, and it did not realistically threaten the constitutional transfer of power, even if our boast that such transfers will always be peaceful has taken a hit that should pain all of us.
The rioters will be punished appropriately, but not punished as if they were terrorists who were trying to overthrow the United States government. Yes, January 6, 2021, will live in infamy as a national disgrace. But in the main, it is Donald Trump’s disgrace.
