October 7, 2022

Where Jan. 6 prosecutions stand, 18 months after the attack

Eighteen months since a pro-Trump mob ransacked the Capitol and disrupted the peaceful transition of presidential power, prosecutors are closing in on another milestone: 900 arrests.

According to the latest Justice Department figures, more than 855 members of that crowd are facing charges that range from trespassing on restricted grounds to seditious conspiracy. Prosecutors estimate that more than 2,000 people actually entered the Capitol unlawfully that day, which means hundreds more arrests are likely in the months to come.

For a year and a half, the justice system has been slowly grinding through those cases, which have taken on increasing complexity as the House Jan. 6 select committee reveals new details about then-President Donald Trump’s own role in fomenting the events of that day.

So far, 325 defendants have pleaded guilty to crimes stemming from the breach of the Capitol, the vast majority to misdemeanor crimes. But the most crucial tests of the Justice Department’s work are still to come. The ongoing hearings of the Jan. 6 panel have produced compelling testimony that points toward Trump’s knowledge of the potential for violence, and the trials of the Oath Keepers and Proud Boys — groups accused of conspiring to violently prevent the transfer of power — are still months away.

Here’s a look at the latest trends in Jan. 6 prosecutions, pleas and sentences.

DOJ’s perfect jury trial record

Eight Jan. 6 defendants have faced jurors on felony charges stemming from their involvement in the attack on the Capitol, choosing that rather than taking plea deals offered by the Justice Department. All of them have been convicted on every charge to date, whether it was former New York City Police Officer Thomas Webster, who was charged with assaulting an officer, or Dustin Thompson, who was charged with attempting to obstruct Congress’ work to certify the election and ransacking the Senate parliamentarian’s office in the process.

The results have led to protests from Trump supporters that the D.C. jury pool is simply too biased against those facing Jan. 6-related charges to reach fair verdicts. But some judges have swept away those arguments, pointing to the overwhelming evidence that the Justice Department has brought to bear in these cases — including video recordings of the defendants’ actions, eyewitness accounts from the officers who fended them off and the boasts many rioters shared on social media.

The only acquittals have been courtesy of a single judge: U.S. District Court Judge Trevor McFadden. Two defendants opted to waive their rights to a jury trial and try their hand with McFadden, who has been notably skeptical of the Justice Department’s treatment of misdemeanor Jan. 6 defendants. The Trump appointee acquitted defendant Matthew Martin on all four counts against him, contending that Martin might have reasonably believed the Capitol Police had permitted him access to the building. He also acquitted defendant Couy Griffin, a New Mexico county commissioner, on one of the two charges he faced for crossing into restricted Capitol grounds and remaining for hours.

Prosecutors’ successful conviction rates at trial are likely to help the department secure guilty pleas from other similarly charged defendants, who would prefer to avoid the same outcome.

The most important upcoming court cases to emerge from the Jan. 6 attack revolve around two extremist groups: the Oath Keepers and the Proud Boys. Both groups have seen their leaders charged with seditious conspiracy, and a slew of other connected defendants are facing felony charges as well. Oath Keepers founder Stewart Rhodes and his top allies are set to face jurors in September, while former Proud Boys national chairman Enrique Tarrio and four alleged co-conspirators are on track for a December trial.

The extremist groups trials

But the work of the Jan. 6 select committee — which has shined a bright spotlight on the role of pro-Trump domestic extremists in the attack on the Capitol — has already had an impact on the timing of these trials and may continue to roil the calendar.

The committee is planning to hold a hearing next week focused entirely on the connections between Trump-world and the Proud Boys and Oath Keepers. Several of those facing conspiracy charges are likely to be identified by name and publicly depicted as part of the effort to prevent the peaceful transfer of power by force. Concerns around pretrial publicity, which the Justice Department shared, already led U.S. District Court Judge Timothy Kelly to move the Proud Boys trial from August to December.

U.S. District Court Judge Amit Mehta has not delayed Rhodes’ trial past September yet, but the judge’s calculus may change depending on the select committee’s plans. The panel has signaled it is likely to release a final report and about 1,000 witness interview transcripts by September, many of which could pertain to the ongoing cases.

Widely varied sentences

About 200 defendants have seen their cases all the way through from arrest to sentencing, with the vast majority pleading guilty to misdemeanor crimes. As a result, sentences have skewed toward probation and home confinement, rather than significant terms of incarceration. That’s likely to change as some of those facing more serious charges go to trial or plead guilty themselves.

In the growing number of felony plea deals and jury convictions, defendants have received months and even years of jail time. But sentences have varied widely, in part because of the 22 different U.S. District Court judges handling the Jan. 6 cases. The harshest sentence so far has gone to Robert Palmer, who received a 63-month jail term after pleading guilty to multiple assaults on police officers guarding the Capitol’s lower West Terrace tunnel.

The Trump question

Jan. 6 defendants have, with more frequency in recent weeks, raised questions about Trump’s own involvement in exacerbating the violence that day. Vivid testimony by former White House adviser Cassidy Hutchinson — in which she described Trump’s awareness of weapons in the Jan. 6 crowd and his desire to march with supporters to the Capitol despite his advisers’ repeated entreaties against it — have intensified the focus on Trump’s role in stoking the crowd.

Judges, for the most part, have brushed aside defendants’ arguments that Trump’s actions bear on their own decisions to breach police lines or commit other crimes. Jurors rejected a similar argument raised by Thompson during his trial in April.

But the select committee’s hearings are still rippling through the ongoing criminal cases. One defendant, Anthony Williams, sought to delay his trial by citing the hearings as prejudicial to his case. Chief Judge Beryl Howell of the U.S. District Court for D.C. rejected his motion, contending that, if anything, the hearings would benefit him.

“Why isn’t that theme actually helpful to this defendant, making him seem like a small cog in bigger political machinations happening behind the scenes?” Howell said as she rejected Williams’ motion.

In one of the most sprawling Jan. 6 cases — against some of the defendants facing the most serious police assault charges connected to violence in the Capitol’s lower West Terrace tunnel — defense attorneys cited the upcoming release of Jan. 6 committee transcripts as a reason to delay a trial slated to begin on Oct. 3. McFadden, the judge in that case, has yet to weigh in on the motion.

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