Since Jan. 6, we’ve heard that the riot at the U.S. Capitol was an insurrection, sedition, perhaps treason.
Democratic Senate Majority Leader Chuck Schumer, no stranger to bombast or hyperbole, said the “rioters and insurrectionists, goons and thugs, domestic terrorists” who stormed the citadel of our republic “do not represent America.”
“They were a few thousand violent extremists who tried to take over the Capitol building and attack our democracy,” Schumer said, no doubt voicing the feelings of many Americans, especially on the left. “They must be prosecuted to the full extent of the law, hopefully by this administration, if not, certainly by the next. They should be provided no leniency.”
One might have thought the rioters were destined for the gallows, as Benjamin Franklin warned upon the adoption of the Declaration of Independence, reportedly telling his fellow Founding Fathers, “We must all hang together, or most assuredly we shall all hang separately.”
According to Politico, however, the legal and political bloodlust craved by Schumer and other Democrats is not likely to come to pass.
“Americans outraged by the storming of Capitol Hill are in for a jarring reality check: Many of those who invaded the halls of Congress on Jan. 6 are likely to get little or no jail time,” Politico reported on Tuesday.
The online publication said its analysis of the cases brought in the Capitol riot revealed that “almost a quarter of the more than 230 defendants formally and publicly charged so far face only misdemeanors. … In recent days, judges, prosecutors, and defense attorneys have all indicated that they expect few of these ‘MAGA tourists’ to face harsh sentences.”
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Politico attributed that to two key reasons: “Although prosecutors have loaded up their charging documents with language about the existential threat of the insurrection to the republic, the actions of many of the individual rioters often boiled down to trespassing.”
Additionally, “judges have wrestled with how aggressively to lump those cases in with those of the more sinister suspects.” And judges are increasingly impatient with prosecutors who insist on inflicting maximum damage legally with minimal evidence.
Erica Hashimoto, a former federal public defender who now teaches law at Georgetown University, told Politico, “My bet is a lot of these cases will get resolved and probably without prison time or jail time. One of the core values of this country is that we can protest if we disagree with our government. Of course, some protests involve criminal acts, but as long as the people who are trying to express their view do not engage in violence, misdemeanors may be more appropriate than felonies.”
The problem, as Politico sees it, is that the Biden administration, Democrats in Congress and liberals in the media overhyped the threat and the actual legal realities are hard to square with the rhetoric.
“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,” Politico noted.
“While violent assaults in the Capitol are rare, protests and acts of civil disobedience — such as disrupting congressional hearings or even House and Senate floor sessions, are more common. That means prosecutors and judges will have to weigh how much more punishment a Trump supporter who invaded the Capitol during the Electoral College count deserves than, say, an anti-war protester chanting at a CIA confirmation hearing or a gun-control advocate shouting in the middle of the State of the Union address.”
Paul Butler, a former federal prosecutor turned Georgetown law professor, added, “The punishment has to be proportional to the harm, but I think for many of us, we’ll never forget watching TV Jan. 6 and seeing people wilding out in the Capitol. Everybody who was there was complicit, but they’re not all complicit to the same degree for the same harm.”
“Nobody goes to jail for a first or second misdemeanor,” Butler observed.