Feds Lower Expectations for January 6 Probe

The FBI continues to hunt down Americans even for minor involvement in the breach of the Capitol on January 6. Four Ohio residents were arrested last week and charged with common misdemeanors. It appears the group was inside the building for about 15 minutes and committed no violent crimes.

It’s the latest example of the absurdity of the Capitol breach probe; rather than pursue the handful of violent offenders, Joe Biden’s Justice Department is rounding up alleged trespassers. And it would be laughable if this eight-month manhunt to punish Trump supporters wasn’t destroying lives and tearing families apart in the process.

But a funny thing happened on the way to the insurrection gulag; the overwhelming number of cases consist only of low-level offenses. That is not what Michael Sherwin, the head prosecutor handling the first few months of the Capitol breach probe, promised one week after the protest. “The initial charges we’re filing, these misdemeanors, these are only the beginning,” Sherwin said at a January 12 press conference. “We’re looking at serious felony cases tied to sedition and conspiracy.”

Yet, in spite of Twitter’s best efforts, no one so far has been charged with insurrection or sedition; the best the government can do is file hard-to-prove charges of obstruction of an official proceeding or conspiracy, both felonies.

The Justice Department set expectations extremely high early on. Revenge against Americans who dared to protest the election of Joe Biden would come fast and fierce, the public was assured. Attorney General Merrick Garland promised the investigation into January 6, which he compares to the Oklahoma City bombing, would be his top priority. And when FBI Director Chris Wray designated January 6 an act of “domestic terrorism,” Trump haters smelled blood in the water.

No Evidence of Serious Plans

The Justice Department now seems to be prepping the ground for a major letdown. “The FBI has found scant evidence that the Jan. 6 attack on the U.S. Capitol was the result of an organized plot to overturn the presidential election result,” Reuters reported August 20. Nearly all of the cases, four former and current law enforcement officials said, are “one-offs” while roughly five percent are associated with so-called militia groups.

“FBI investigators did find that cells of protesters, including followers of the far-right Oath Keepers and Proud Boys groups, had aimed to break into the Capitol. But they found no evidence that the groups had serious plans about what to do if they made it inside,” the unnamed sources told Reuters.

Of course, raiding people’s homes and concocting ludicrous charges such as “parading, picketing, or demonstrating” in the Capitol is the easy part. Proving these cases in court is much more difficult, even as Obama-appointed Beltway judges who have shown no mercy for the accused sit in judgment.

The Oath Keepers case is facing serious headwinds. Seventeen Oath Keepers (or alleged members) are charged with conspiracy along with numerous nonviolent crimes. It’s a ridiculous case; the group entered the building—by all accounts through an open entryway—in a so-called “stack formation” while wearing military garb.

No one carried a weapon or assaulted a police officer. No one vandalized property. Screenshots of surveillance video released last week shows a few Oath Keepers just standing in the Rotunda doing nothing wrong. They took selfies and exited the building less than 20 minutes later.

The first trial is scheduled to begin January 31, 2022. Judge Amit Mehta is dividing up the defendants; the January trial will include Oath Keepers who’ve been behind bars under pre-trial detention orders. By that time, a few will have been incarcerated for nearly a year awaiting trial. (On Monday, Metha approved the release of Joseph Hackett, an Oath Keeper who has been incarcerated in the D.C. jail since June.)

Troubling Delays

The government does not appear ready to go to trial. After a prosecutor admitted during a separate status hearing in July that the Justice Department wouldn’t have its discovery obligations fulfilled until early 2022 at the earliest, Mehta asked for a discovery update in the Oath Keepers case. He called the delays “troubling.”

The lead prosecutor told Mehta the defendants would have all the material related to their case by early September. (The government still does not have a workable platform to share massive amounts of digital evidence, including tens of thousands of hours of video, with defense counsel.) That timeline, however, turned out to be inaccurate.

In a filing last week by Channing Phillips, the U.S. Attorney for the District of Columbia, the office handling every January 6 prosecution, informed Mehta discovery in the Oath Keepers won’t be ready until early October.

And that’s not the only looming obstacle. Next month, Mehta will consider a change of motion filed in July by one of the defense attorneys and subsequently joined by all the defendants. Pointing to the fact that only five percent of D.C. residents voted for Donald Trump in 2020, David Fischer, lawyer for Thomas Caldwell, one of the first alleged Oath Keepers arrested in January, wrote that “the overwhelming majority of District residents despised Caldwell and his co-defendants before January 6th.”

Fischer ticked off a long list of biased local and national news coverage as well as inflammatory comments made by “the President, Attorney General, Speaker of the House, prominent politicians, and media personalities,” related to the case.

He reminded the court that President Trump and Republicans were routinely harassed in D.C. for four years. “District residents . . . have hectored Trump-supporting Members of Congress, surrounded them in restaurants (e.g., Ted Cruz), congregated around their homes (e.g., Lindsey Graham, Josh Hawley), aggressively confronted them on the street (e.g., Rand Paul), and engaged in incessant “protests” around former Majority Leader McConnell’s home,” Fischer wrote. “District protesters attempted to burn down historic St. John’s church, vandalized millions of dollars of statues and other property, and surrounded the White House in an illegal assemblage during BLM and anti-Trump protests. An anti-Trump zealot shot up a softball practice just across the Potomac in Alexandria, nearly killing Majority Whip Steve Scalise. The level of antipathy towards Trump and his supporters in the District is off the charts and makes it impossible to find an impartial jury.”

The trial should be moved to the western district of Virginia where Caldwell lives, Fischer argued, noting that “many acts that Caldwell engaged in occurred in the [western district].”

A “Constitutional Vagueness Problem”

Fischer also asked Mehta to dismiss the obstruction felony against his client based on the fact the electoral college certification was not a legal or judicial proceeding, which the law was designed to protect from interference. (Every Oath Keeper also is charged with obstruction of an official proceeding.) “On January 6th, sworn testimony was not being taken, witnesses were not summoned, and documents were not subpoenaed,” Fischer wrote in a separate motion filed last week.

Other defense attorneys also are pushing back on the government’s obstruction charges, levied against at least 200 defendants.

Earlier this month, Judge Randolph Moss warned prosecutors they faced a “constitutional vagueness problem” in applying the obstruction charge to January 6. Moss asked how the obstruction felony, which carries a maximum sentence of 20 years in prison, is different from the other misdemeanor charges that only allow for up to six months in jail. “Unless we can tell the public where that line is, there’s a problem.”

The Oath Keepers is the government’s marquee case to show the public that white supremacist militia groups loyal to Donald Trump organized a pre-planned attack on the Capitol on January 6 to overthrow the government. It’s clear the Justice Department won’t be able to prove its case; last week’s revelation is just the start of walking back their tough talk.

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