Why some US Capitol rioters are getting no jail time

(CNN) — When it comes to holding the January 6 US Capitol rioters to account, the Justice Department has plenty of tools in its prosecutorial toolbox — and plenty of critics who have questioned whether they are prosecuting defendants to the fullest extent of the law.

Some of the alleged rioters are facing felonies stacked upon felonies — an assortment of obstruction, assault and theft charges, like the Pennsylvania man who’s been accused of punching a police officer and stealing the officer’s body camera. But dozens of other alleged rioters could plead guilty to misdemeanors and walk away with a slap on the wrist.

Former prosecutors and other legal experts tell CNN that the strategy makes sense, as the department should prioritize its resources on the most dangerous of the mob participants, while securing cooperation from the more periphery rioters to help build cases against the serious offenders.

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Yet the approach has rankled some judges who are presiding over the cases, and the department’s refusal so far to bring any formal sedition charges has prompted its own debate in the legal community.

Misdemeanor charges help clear the decks for going after the more dangerous rioters

The low-hanging fruit in the Capitol prosecutions have been mob participants who entered the building but did not engage in the specific acts of violence that would warrant felony charges.

There are a handful of different types of misdemeanor charges — some from statutes aimed specifically at trespassing or disorderly conduct on the Capitol grounds — that have been brought in these cases. A go-to charge in plea deals with non-violent offenders has been from a statute that prohibits unauthorized people from entering the Capitol to “parade, demonstrate, or picket.”

That charge carries a six-month maximum, but some defendants who have pleaded guilty to that sole charge have gotten off with just probation or home confinement, with factors like a lack of criminal history shortening the sentences of some defendants.

At a plea hearing for mob participant Jack Griffith, who pleaded guilty to a “parading” charge, DC District Court Chief Judge Beryl Howell questioned the appropriateness of the sole “petty offense.” She asked the government whether it would prevent Griffith in the future from “joining a mob, breaking into the Capitol building” and “terrorizing members of Congress.”

“This could be a circumstance that arises every four years,” Howell added.

However, Howell’s qualms aside, legal experts told CNN that these prosecutions are an important tool for prosecutors as they have sought to free up resources and secure cooperation so that the DOJ can build more significant cases against those who led the riot.

“If what we’re concerned about is every four years this happening, then what we need to do is focus on the planners and ringleaders,” said Alan Rozenshtein, a professor at University of Minnesota Law School who previously worked in the Justice Department’s National Security Division.

“If that means that we don’t scrutinize the ‘randos’ — for lack of a better term — who were operating on the periphery of this, or even that we maybe undercharge a few of the mid-level figures because they can help provide information on the more senior organizers, I am OK with that,” he added.

These cases — usually easy to prove with just video or digital evidence that puts the defendants in the Capitol during the riot — have also allowed prosecutors to hold the mob participants accountable for their role in the riot, even if they weren’t committing the more serious crimes of that day.

“It’s important to set that precedent that you can’t claim to just be swept up in something and face no consequences when the thing you’re swept up in is a violent attack on the United States government,” said Adav Noti, a former special assistant US Attorney in Washington, DC, who is now at the Campaign Legal Center.

Conspiracy to go after the ringleaders

The Justice Department’s marquee prosecutions are the conspiracy cases it’s brought against the Oath Keepers group accused of coordinating the disruption to the certification vote, and against a faction of Proud Boys who were allegedly the first to breach the Capitol.

On a technical level, the charge of conspiracy applies to those whom the government can prove were working together towards the goal of committing an illegal act. But in the context of the Capitol riot, those indictments lay out the story of how, for at least some involved in the insurrection, it was not a spontaneous event — a peaceful protest that went awry — but a coordinated plan to violently interrupt Congress’ certification vote.

If there was “any pre-planning or coordination here, DOJ absolutely has to charge those [cases] as conspiracy, because that is an important part of the story,” said Elie Honig, a CNN senior legal analyst and a former federal prosecutor. “We need to know how much of this planned out in advance and who was behind it and why.”

While these conspiracy cases often deal with some of the most dangerous rioters, they also tend to be the most complicated to bring. That is because investigators are relying not just footage or public social media posts from that day, but evidence that tracks the span of months and includes encrypted messages, phone records, credit card transactions and the cooperation of other participants in the alleged conspiracy.

When the Justice Department brought its first conspiracy charge, on January 19, the indictment named just three defendants and rested mainly on security footage and social media posts from the rioters. That case has since expanded to include 17 defendants, and each superseding indictment — the fifth one in the Oath Keepers case was unveiled earlier this month — goes into deeper detail into how the defendants allegedly coordinated training, travel logistics, what weapons to bring and the tactical maneuvers for the breach.

A single conspiracy charge carries a five-year statutory maximum, but again, it’s unusual for a defendant to receive the maximum. That being said, some of the defendants in the big Oath Keepers and Proud Boys conspiracy cases are facing several other felony charges for violent behavior, in addition to the conspiracy charge.

The charge aimed at the riot’s attack on democracy

One charge in particular has signified what the January 6 riot was about: disrupting the democratic process. Prosecutors have nodded towards that goal in the 200-plus cases where they have brought the charge of “obstruction of an official proceeding.” In some ways, the charge is nothing special; it’s what is used in witness tempering cases.

The obstruction charge carries a 20 year statutory maximum, but in practice — with all the factors that go into sentencing — most defendants will serve far less for the charge; a rioter who pleaded guilty to the obstruction charge recently received eight months in prison, even as the department sought one and a half years.

Still, prosecutors not only need to show that the rioters were present in the Capitol that day, but that they breached it with the intent of disturbing Congress’ certification ceremony. To establish this motive, prosecutors have pointed to many rioters’ social media postings, the bragging they did during livestreams of the Capitol attack and even interviews that the mob participants gave to news media during and after the ransacking.

However, DOJ has not brought the charge against every mob participant who entered the Capitol, even when it is no real mystery why they were there.

At a plea hearing for a mob participant whose plea agreement did not include the obstruction charge, Chief Judge Howell expressed frustration that the Justice Department wasn’t bringing the charge in more cases.

Assistant US Attorney Clayton O’Connor told the judge that the government lacked the kind of evidence that would allow them to show the intent beyond a reasonable doubt.

Meanwhile, another DC federal judge, Judge Randolph Moss has raised concerns about a potential “constitutional vagueness problem,” meaning that courts could overturn convictions if DOJ doesn’t do enough to distinguish the charge from general trespassing.

What about sedition?

Additionally, the DOJ’s reliance on the obstruction charge has also sparked a debate among outside legal observers over whether the department should be using sedition charge to get at what the Capitol riot was about instead. Though other parts of the seditious conspiracy statute deal with plans to use force to “prevent, hinder, or delay the execution of any law,” most associate the sedition statute with its language around plots to overthrow the government.

That association and the statute’s Civil War origins may be why prosecutors are wary of using sedition, according to Matthew Schneider, a former US Attorney in Detroit.

“Maybe [prosecutors’] thinking is, ‘I don’t want to use this statute because then people will accuse me of saying, ‘they’re trying to overthrow the government,’” Schneider told CNN.

The sedition charge could bring legal risks as well; when prosecutors sought to bring to seditious conspiracy against a Christian militia group that plotted against law enforcement, the judge in 2012 threw out the charge for lack of evidence.

It’s worth noting that the obstruction charge and seditious conspiracy carry the same 20-year statutory maximum, though, it is rare that a defendant would get that maximum, given the other factors that go into sentencing.

If the symbolism of how serious a charge is comes from its statutory maximum, then sedition and obstruction are “equivalent statutes,” Rozenshtein said. “If you think the symbolism comes from the historical pedigree of the different statutes and how rarely we use them, then they’re not the same.”

Crimes of violence and destruction

More than 100 defendants have been charged with felonies like civil disorder; destruction of government property, and assaulting, resisting, or impeding federal officers. These crimes tend to be straightforward to prove, since they don’t require prosecutors to dig into intent. And with there being no shortage of security footage, police body camera video and social media livestreaming, there has been ample evidence of the alleged assaults and thefts.

“If you have to prove it, it’s very easy to explain to a jury,” Honig said, “The only trick is proving who did what inside the building, when you had a mass of thousands of people.”

Several dozen defendants face various assault charges, including “assault in a special jurisdiction,” which is how prosecutors have gone after rioters who have allegedly assaulted non-government employees, such as the Pennsylvania man accused of attacking an AP photographer. Another common charge is a “civil disorder” charge that carries a five-year maximum for “commit[ting] or attempt[ing] to commit any act to obstruct, impede, or interfere with” law enforcement officer during civil disorder. Some of the assault charges, particularly when the defendant is accused of wielding a deadly weapon, carry a maximum sentence of 20 years — though most defendants will face far more modest punishments when other factors are taken into account.

Nevertheless, this is where prosecutors are expected to seek aggressive sentences than what has been seen in the plea deals for defendants accused of non-violent conduct.

“The two main reasons to charge more severely the folks who engaged in destructive behavior, like destroying property, are to deter anyone else from doing that again — to make clear that there are going to be consequences and to deter these people from doing it again,” Noti said.