The Daily - Prosecuting the Capitol Rioters

Episode Date: May 17, 2021

In the months since a pro-Trump mob breached the walls of the Capitol building, some 420 people have been arrested and charged in connection with the attack. And that number is expected to rise.As federal prosecutors prepare for a unique challenge, we look at the twists and turns of bringing those who were in the building to justice.Guest: Alan Feuer, a reporter covering courts and criminal justice for The New York Times. Sign up here to get The Daily in your inbox each morning. And for an exclusive look at how the biggest stories on our show come together, subscribe to our newsletter. Background reading: Prosecutors are negotiating plea agreements as they confront a sprawling investigation with hundreds of defendants.Defense lawyers have complained that some charges do not apply to what unfolded on Jan. 6. Here’s how those accused have challenged the accusations against them.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Michael Barbaro. This is The Daily. We're seeing protesters overcome the police. The police are now running back into the Capitol building. This is a moment I never saw in my life. In the four months since thousands of rioters attacked the U.S. Capitol on January 6th. The Justice Department is once again engaged in a complex nationwide resource intensive investigation. Federal prosecutors charged five alleged members of the far right cowboys. Nine members of the right wing militia known as the Oath Keepers. Hundreds of those who participated in the assault have been arrested and charged.

With criminal conspiracy. To quote, corruptly obstruct, influence and impede an official that is, Congress's certification of the Electoral College vote. And federal prosecutors are now preparing for a series of historic trials. Today, Kevin Roos talked to our colleague, Alan Foyer, about the challenges of prosecuting an unprecedented crime. It's Monday, May 17th. So, Alan, I confess that I've lost the thread on what's been happening with this effort to hold the rioters of January 6th accountable. But you have been covering every beat of this. So will you catch me up on what's been happening? Sure. So since January 6th, the FBI has gotten over 200,000 individual tips from husbands of people who are there, ex-wives of people who are there, co-workers, neighbors.

The Capitol was also, don't forget, the largest digital crime scene in the history of the planet. The government has 15,000 hours of video of the events of January 6th. You're talking about security cameras inside the Capitol. It comes from body-worn cameras on police officers. It comes from news cameras that covered the event. It comes from Facebook live streams. You know, this is just an unprecedented investigation. 420 people have been arrested in connection with the attack on the Capitol thus far, and that could go up to 500 people by the time the investigation finally comes to a rest. It's just nothing ever this big has been undertaken by the Justice Department in its history. But obviously there were many more than 500 people at the riot on January 6th.

So why have these 500 people been targeted? So you can kind of collect them into three main buckets. The first, which is probably most of the people who were at the Capitol that day and have been arrested, were people who went into the building. Sometimes they were absolutely ushered in by the cops. They walked in. They broke nothing. They hurt no one. They took some selfies. They did a live stream, and they walked out. There are a lot of those people. We're talking about a trucker, a fashion student, real estate agents, an Orthodox Jew from Brooklyn. It was a super wide group of people who made their way into that building. Now, one of them was the guy who

everybody called zip tie guy at first, Eric Munchell, who was seen in the well of the Senate with plastic zip ties on his belt. Another guy who has ultimately fallen into this kind of first grouping was Richard Barnett, who was photographed with his feet up inside Nancy Pelosi's office, despite the fact that he had a 970,000-volt stun gun on his hip. So the people in this bucket one, as we're calling it, they're really in that grouping because of their conduct, what they did, or rather what they didn't do, not just because they were tourists, as some politicians have described them. Got it. So what about the second bucket of defendants?

So the second bucket are people who were engaged in really violent attacks against officers, people who have been accused and charged of assaulting cops. And the violence at the Capitol, when you look at the videos, it was medieval hand-to-hand combat. Up close and personal fighting. People beating other people with hockey sticks and lacrosse sticks and fire extinguishers and, you know, a skateboard. You're talking to like about 80 to 100 people here. A pro-life guy from rural Pennsylvania who hunts pheasants. There's a geophysicist who, after he was charged, tried to escape to Switzerland. There's a guy from Texas who is said to be a member of the

3% militia, which is a kind of radical gun rights movement. So again, a pretty varied group of people. That's right. And the third bucket, which is arguably the most serious and the bucket to which the federal government has devoted the most attention and resources are people who have been charged with pre-planning of one sort or another. In other words, getting ready in advance of January 6th

for violence, for this event, conspiring and working together. And most of those people, though not all, have some sort of affiliation to extremist groups like the Proud Boys, the far-right nationalist group that has been fighting on the streets since really the beginning of the Trump administration, and the Oath Keepers, which is a sort of right-wing militia-style group that draws most of its membership from the ranks of

former military and law enforcement personnel. I'm struck by the fact that these are three radically different groups, like everything from people who seem like maybe they were just mostly there to post photos on social media and kind of got caught up in the moment. And then people who were very much prepared for a fight, people who were in tactical gear, who brought weapons of various kinds, who don't seem to have been casual participants at all. So what happened on January 6th would not have been possible without the simultaneous presence of kind of the, call them the organized extremists, and then the so-called ordinary people.

Why? Because if just the extremists had showed up, police are able to handle them. What was different this time is that there was this critical mass of other people that really was the force that brought down the walls of the Capitol itself, just the combined force of that mob. Why were all those people there? That's a really complicated question. But from a legal standpoint, what prosecutors are attempting to really pinpoint and figure out is how do we deal with individual people and what they actually did on the ground that day? Okay, so the government has now rounded up all these people and charged

them with crimes. What do you expect to happen next? Well, of the 500 people who may ultimately be charged, the vast majority will take deals from the government and plead guilty. The rest will presumably fight their cases and may ultimately wind up at trial in a courtroom. Maybe this is a dumb question from a tech reporter who doesn't cover the law and is not a lawyer. But even though you expect most of these people will plead guilty, I guess I'm just surprised that any of them are considering pleading not guilty, considering how much evidence there is against them. Like, we all saw the Instagram photos and the YouTube videos from inside the Capitol. Like, many of these people have been directly implicating themselves in taking part in the riot. So how is that possible? So look, if the government wanted to prosecute every single person for what amounts to federal trespass alone, that could be done very readily. The issue is that the trespass statute is a misdemeanor and it does not carry much of a penalty. not carry much of a penalty. And there is an obvious desire by the government to hold those who did more than just walk in and walk out accountable for what was an unprecedented

attack on the democratic process itself. And so that is why more charges have been brought against a lot of these defendants. And that is why people are pushing back. We'll be right back. We'll be right back. So, Alan, you said that prosecutors are having to consider all kinds of charges. Can you just explain what those are? Sure. So one of the lowest level crimes that is being widely charged is what amounts to a federal trespassing charge.

And, you know, you would think that, hey, that's pretty simple, right? There's a lot of video evidence of people trespassing on the Capitol grounds, moving past security barriers, breaking windows, and entering the building. Boom. What's the problem here? Well, if you look at the statute that has been charged, for those following at home, it's Title 18, Section 1752. One of my favorite statutes. Well, yes. It's a bit more complicated than that because the way that this law is structured, trespassing is defined by violating or breaching Secret Service security lines. And the U.S. Capitol is not protected by the Secret Service. The U.S. Capitol is protected by the Capitol Police.

Now, yes, Vice President Pence, who is protected by the Secret Service, was, as we all know, in the Capitol for a while overseeing the certification of the vote. But then once the riot began, he was hastened out of there. So what happens then? hastened out of there. So what happens then? This is what defense lawyers have started to say in several motions to dismiss that particular charge as not being applicable. Huh. So the way this statute was written is that it only applies if you violate a secret service boundary. And that because these defendants trespassed against the Capitol Police and not the secret service, theoretically, they could get off.

Theoretically, they could get off on that charge. Yeah. So another widely charged crime, more serious in its sort of legal significance, charge crime, more serious in its sort of legal significance, basically amounts to obstructing or interfering with police officers while the officers are dealing with civil disorder. And we all kind of saw that happening. And it has a fascinating history. This is a 60s-era law that was essentially passed by segregationist congressmen as a way to crack down on the civil rights movement. of the leftist protesters who were battling with federal officers at the courthouse in Portland following the death of George Floyd. And folks out in Portland who have been arrested under this law

have challenged its constitutionality for a variety of reasons. Violation of First Amendment provisions of free speech and freedom of assembly. And so that's getting fought out in the courts in Portland. What happens if a federal judge in Portland says, you know what, this law, it's unconstitutional. I strike this law down. Well, what does that mean for the scores of people who have been charged with it in connection to the attack on the Capitol? But for the more violent rioters, the people who are on tape beating up police officers, there are clear charges that are probably going to stick for those people, right? There are assault charges, and they've been brought.

But consider this, because it gets a little complicated there, too. Let's say you have four people who have been charged together with setting upon an officer who has fallen to the ground. One of them yanks off the officer's gas mask. The other one sprays mace in the officer's face. The other one is hitting the officer with an object. And a fourth person is fending off other cops who are trying to get in to save the fallen cop.

What are the levels of culpability for each of those people? And it may not make a huge difference at the moment that they are charged, but as the government has started moving towards offering pleas and trying to figure out how much time in prison does this person deserve as opposed to this person, those complications will come into play. And there's another crime that has been widely charged here, one that carries a 20-year maximum in prison, and it is the obstruction of an official proceeding. And of course, you'd say, yeah, of course, right. These rioters obstructed the formal certification of the presidential vote.

Doesn't get more serious than that, right? Well, let's take a look at the actual statute. This statute, it comes out of a line of obstruction of justice statutes. And that's important because the government has an interest in not allowing people to mess with and interfere with like legal proceedings. Well, the certification of the Electoral College vote, as we all kind of found out in the days leading up to January 6th, is not really a legal proceeding. It's a ceremonial, ministerial proceeding. This was the whole argument that took place over whether Mike Pence could or couldn't just throw out the results of the election with a stroke of his pen. Because if it was an actual

legal proceeding where they were trying to figure out if the vote was valid or not, that's one thing. But if it's just a formalized rubber stamp of, hey, I'm just doing my job here, I'm a glorified checkmaker, then it's not really a legal proceeding. So defense lawyers have started arguing that this law doesn't fit. And that too is going to get fought out in the courts. So it sounds like in some cases, their lawyers are doing like a very close reading of all these obscure statutes and finding all these vulnerabilities to push on. But I'm wondering about another potential defense, which I feel like I heard a lot about

right after January 6th, which was basically that President Trump asked me to do this. You're right. There's one guy who's already kind of put forward this argument. He's a former Marine. His name is Dominic Pozzola. He's the guy, you see him,

he's got the shaggy beard and the shaggy hair, and he's smashing a police riot shield into a window at the Capitol. So Pozzola's lawyer has said, look, Pozzola was a patriot. He's a Marine. He followed his commander-in-chief's order. He went to the Capitol. He did what he was told to do. Now he's in federal prison.

And Trump, as the lawyer specifically mentions in some of his filings, is like on the golf course. My client, the lawyer says, Dominic Pozzoli, he feels betrayed by the president. Now, that kind of defense actually has a name. It's called the public authority defense. People argue that I was simply listening to someone with higher authority than me. And so therefore, the crime I committed, I'm not responsible for it because someone higher up the food chain told me to do it. The problem is that's not a viable strategy at trial because courts have said, look, if the public authority is telling you to do something illegal, that doesn't wipe the slate clean. You don't just get off scot-free because

someone higher up told you to commit a crime. So that is not going to work in front of a judge deciding whether the guy is guilty or innocent. But look, it might be an argument that comes up when it's time for him to get sentenced. Okay. So you talked about this spectrum of charges that prosecutors are going to bring. Everything from trespassing to civil disorder. There's assault in some cases. This obstruction of a legal proceeding. Is that the extent of it? No.

The sort of top marquee charge is conspiracy. These are the people who have been accused of some sort of pre-planning, working together, acting in concert to attack the Capitol on January 6th. It carries a serious penalty like the others do. It's a 20-year penalty. So as it stands now, the two groups that are facing kind of the most significant conspiracy charges are these organizations, the Proud Boys and the Oath Keepers. Both instances, the government has alleged that planning for the Capitol attack essentially began after Trump lost the election. Members of these extremist organizations were online discussing the baseless allegations of fraud, that this was a stolen election. the baseless allegations of fraud, that this was a stolen election. There's allegations that there were virtual meetings where people were talking about operations on January 6th,

fundraising, the acquisition of protective gear and communications equipments like multi-channel radios. multi-channel radios, all of this pre-planning couched in a kind of persistent chatter of, we got to do something about the stolen election. So the allegations are that the Oath Keepers and the Proud Boys conspired together, worked in concert to obstruct an official proceeding and to interfere with law enforcement officers who were working during a civil disorder. So what is their defense? So the defense that the Proud Boys and the Oath Keepers are going to offer will be relatively similar. And that is simply this. This planning was not for an offensive assault on the Capitol or on the certification of the presidential vote. This planning was actually a defensive maneuver to protect ourselves against leftist counter-protesters. And in November and December, there were pro-Trump rallies in Washington, D.C., and at those rallies, there was violence on the streets. People were arrested, people were

stabbed, people were injured. So the Proud Boys are going to offer up a, we were just preparing for Antifa defense. But that defense seems pretty thin because no one was making these groups go to the Capitol on January 6th. So if they were so worried that they would encounter violence from leftist radicals, they could just have stayed home.

Well, look, that has been the Proud Boys' M.O. from the beginning. They often provoke responses. They go into the heart of liberal cities like Berkeley and Portland, anticipating a reaction from the left. And frankly, that's not illegal, right? Like, you're allowed to do that under the First Amendment. The interesting piece of the puzzle here is that on January 6th, unlike in November and December, there really was no leftist counter-protesting presence. They still attacked the Capitol nonetheless. And so what you might end up seeing

is the government reconfiguring its allegations to make the conspiracy not begin the day after the election or close to it, but rather January 5th or even the morning of January 6th. I have to say, it just on one level feels very surprising to me. Like, on one level feels very surprising to me. Like, why is this case so hard to prosecute when it seems so clear-cut on its face? Look, the central tension that has defined this unprecedented act and the unprecedented investigation that has followed it is this. Justice is supposed to be meted out on an individual level, one defendant at a time, one act at a time. So how do you dole out individual justice when what you are attempting to prosecute is the collective and often intersecting actions of a mob. And, you know, I was having a conversation with a lawyer involved in these cases just the other day.

And what he said was, look, everybody is genuinely trying as hard as possible to make sure that justice is done here. It's just that we're all kind of making it up as we go along. Hmm. Because this kind of thing has never really happened before. Yes, because, you know, never in this country's history as a mob of 800 to 1,000 people stormed into the Capitol building in a moment when the absolute pinnacle of the democratic process was being reached. Alan, thank you. Thanks for having me, Kevin.

We'll be right back. Here's what else you need to know today. On Sunday, international pressure to end the violence between Israel and Hamas intensified following a series of high-profile attacks. One of those attacks, initiated by Israel, killed more than two dozen people in Gaza, the single deadliest attack of the current hostilities. In another attack, Israel destroyed a 12-story tower in Gaza that housed two major news organizations, the Associated Press and Al Jazeera. On Sunday, the United Nations Security Council met to discuss ways to de-escalate the conflict.

But in an interview with CBS News, Israel's Prime Minister Benjamin Netanyahu signaled that no end to the hostilities was in sight. We're trying to degrade Hamas's terrorist abilities and to degrade their will to do this again. So it'll take some time. I hope it won't take long, but it's not immediate. And several of the largest retailers in the U.S., including Walmart, Starbucks, and Costco, lifted their mask requirements for vaccinated customers in response to new guidance from the CDC. The retailers said they would still abide by state and local mask requirements, and the move was not universal. For now, some chains, such as Target and CVS, still plan to mandate face coverings for shoppers.

Today's episode was produced by Nina Patuk, Aastha Chaturvedi, and Alexandra Lee Young. It was edited by Paige Cowett and Lisa Chow and engineered by Chris Wood. That's it for The Daily. I'm Michael Bavaro. See you tomorrow.