Observers have recently commented that the January 6 criminal cases are being treated differently from other cases, often, referring to criminal cases arising from Black Lives Matter (BLM) protests and/or Antifa riots.  The difficulty in making that comparison is that those cases are often not similar to the January 6 cases in ways that the law considers relevant to the question of equal treatment.  For example, the BLM and Antifa cases are often being pursued in state courts by state prosecutors, which operate very differently from federal prosecutors and federal courts.  Or the types of charges or the specific conduct of the defendants is different from the January 6 defendants. Those differences make the claim of disparate treatment relatively easy to brush off.

However, the claim of unequal treatment is, in fact, legitimate. A comparison of the January 6 cases to other federal cases involving the same kind of conduct demonstrates that the January 6 cases are being treated significantly more harshly by DOJ and the D.C. U.S. Attorney’s Office.

This article is the first of three in a series demonstrating that that the government has been and is, in fact, treating the January 6 cases more harshly in terms of the charges brought, requests for detention of the defendants pending trial, disposition of the charges, and sentencing demands.  This first article explores these issues with respect to the least serious of the January 6 cases – the misdemeanor cases with no evidence of violence. The two following articles will examine the disparate treatment of pre-trial detention for more serious (misdemeanor and felony) cases, and finally, the disparity in the charges prosecutors are bringing and in the sentences they are demanding across all the cases.

The January 6 Misdemeanor Cases are Being Treated Far Worse Than Directly Comparable Federal Cases

The January 6 criminal cases filed by DOJ fall along a clear continuum.  At the most serious end are the felony conspiracy cases alleging a planned criminal scheme to obstruct the business of the Congress on January 6^th, potentially violently.  There are about 30 individuals currently charged in those cases. A second group of cases do not charge conspiracy but do charge other serious felonies, usually involving assaults on police officers and other violent conduct, often coupled with more minor offenses. The third group of cases involves only misdemeanor charges. This group appears to have two distinct subgroups:  one in which the defendants are alleged to have engaged in at least some relatively minor disruptive or destructive behavior, and a second in which the defendants are alleged to have been unlawfully inside the Capitol, but not to have themselves engaged in any violent or destructive conduct. This article discusses this last group of cases.  Comparing this subset of cases to comparable federal cases, it is abundantly clear that DOJ, and/or the D.C. U.S. Attorney’s Office, is treating them far more harshly than they ordinarily would be treated and than comparable cases have been treated in the past.

Lawful public protesting and minor civil disobedience in the pursuit of political goals are commonplace in modern American life, especially in our nation’s capital.  Protestors descend on Washington regularly to protest at the Supreme Court, the White House and the Capitol building; rain or shine, summer and winter.

It is expected that some of these protestors will be arrested for engaging in civil disobedience. That involves a deliberate violation of the law (a criminal offense), committed essentially peacefully in order to make a moral or political point. Protestors are regularly arrested for engaging in civil disobedience in D.C., including on the Capitol grounds. For example, Jane Fonda was arrested four Fridays in a row in the Fall of 2019 and twice more in January 2020, while protesting climate issues. Protestors who disrupted the confirmation hearings for Brett Kavanaugh and the Senate vote on his nomination to the U.S. Supreme Court in 2018 were also arrested.

Thus, the question arises:  Are the current non-violent, misdemeanor January 6 cases being handled in the same way as prior comparable cases?  The answer is a resounding, “No.”

The Kavanaugh Protest Cases Are Comparable to the January 6 Non-violent, Misdemeanor Cases

The starting point for this analysis is to find a group of comparable cases.  The most directly comparable cases to the non-violent, misdemeanor January 6 cases are the Kavanaugh protest cases.  None of the protestors in either of these groups engaged in violent conduct.  However, many of the Kavanaugh protestors personally engaged in conduct that actually interfered with the Senate hearing or the vote on the Senate floor, while most, if not all, of the protestors in this January 6 subgroup did not, according to their criminal charging papers.

As NPR noted about the Kavanaugh protests in 2018:

At least 227 demonstrators were arrested between the start of the nomination hearings on Tuesday and the end of testimony on Friday, according to the U.S. Capitol Police.

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Such shows of protest are nothing new on Capitol Hill. Televised hearings are open to the public, and as such, the outbursts that roiled much of the judge’s testimony have become a regular feature of similar high-profile hearings. But the degree of opposition on display in the hearing room underscored the level of anger among progressive activists over a pick that would cement the Supreme Court’s conservative majority for years, if not decades, to come.

The two situations are also comparable in that a large number of protestors were arrested.  As both Fox News and CNN noted, over 300 people were arrested in the Kavanaugh protests.

Just as in the January 6 cases, ABC News reported that those arrested in the Kavanaugh protests engaged in protest behavior in the Rotunda of the Capitol and outside the offices of Senators, they targeted specific Senators with whom they were unhappy, and they even invaded the offices of some Senators.

The Kavanaugh protestors also flooded past security barriers.  A Yahoo! News article headline blared: “Brett Kavanaugh protestors ignore police barricades, occupy the U.S. Capitol.”

On the day of the confirmation vote, October 6, 2018, the Kavanaugh protestors again flooded the Senate.  As Time described it:

Mass arrests continued on Saturday as Capitol police apprehended swarms of protesters rallying against the expected confirmation of Supreme Court Justice Brett Kavanaugh.

Capitol Police said they arrested 164 protesters in total, both before and during the vote. The protesters were charged with Crowding, Obstructing, or Incommoding.

The Kavanaugh protestors repeatedly interrupted the Senate during the confirmation vote, screaming and wailing so that the roll call and the Senators’ votes – democracy in action – could not continue.  Time described the scene:

Multiple protesters were forcibly removed from the Senate gallery Saturday, as they continually interrupted the Supreme Court confirmation vote for Brett Kavanaugh.

A press release from the Capitol Police said that 13 people were removed and arrested from the Senate chamber.

Time’s headline for the article also screamed: “‘I Do Not Consent.’ Kavanaugh’s Confirmation Vote Was Interrupted Multiple Times By Screaming Protestors.”

The conduct of the Kavanaugh protestors was at least as serious, and sometimes more serious, than the conduct of the subset of January 6 protestors who merely entered the Capitol and wandered about its public spaces. Thus, the Kavanaugh protest cases provide a fair comparison for this, the least serious, group of January 6 cases.

The Established and Longstanding Practice for Prosecuting Minor Civil Disobedience During Political Protests

Because of D.C.’s unique status and history, all criminal prosecutions — both local and federal — are prosecuted by the federal government.  Offenses under the D.C. Code are prosecuted in D.C. Superior Court (the local court) while federal offenses are prosecuted in the U.S. District Court (the federal court). Both, however, are prosecuted by the U.S. Attorney’s Office, which is part of DOJ. There are provisions in both the D.C. Code and the U.S. Code that can be used to prosecute political protestors who engage in unlawful and disruptive conduct. The choice of which criminal provisions are used and in which court the case is brought is made by the U.S. Attorney’s Office. It has virtually complete discretion in making these choices.

The U.S. Attorney’s Office does not make this charging decision on an ad hoc basis.  Instead, it and the D.C. law enforcement agencies have a developed policy about how protest cases involving minor disorderly conduct are handled.  Under this procedure, protestors are arrested and charged with a local (D.C. Code) misdemeanor disorderly conduct offense, not with a federal misdemeanor offense. The cases are disposed of, often en masse, using a procedure known as “post and forfeit.” The protestor is permitted to “post” $50 at the police station to resolve the matter, at which point they are released, and the case is effectively concluded. The money is shortly thereafter “forfeited,” which is the legal conclusion of the case.  The protestor ends up with only an arrest on his or her record in D.C. Superior Court, but no conviction.  There is no court appearance, no need to hire an attorney, no conviction on the person’s record, no possibility of jail or being put on probation, only a modest fee to pay, and the possibility of sealing the record of the case.

This procedure is so well-established that the ACLU has a page on its website explaining it to protestors who are heading to D.C. for the first time to engage in civil disobedience (although the ACLU wrongly advises that the records of such cases cannot be sealed after the fact.)  The post and forfeit process is applied even to persons who repeatedly engage in civil disobedience, although demonstrators like Jane Fonda who rack up multiple such arrests in a short time (six in three months in her case) are eventually held overnight in the D.C. jail and made to appear in front of a judge before they can be set free.

The January 6 Defendants Are Being Treated Much More Harshly Than the Kavanaugh Protestors

What happened to the Kavanaugh protestors who invaded the people’s House and interrupted the official business of the Congress?  According to media reports and their case dockets, they (apparently all) were treated in accordance with the established post and forfeit procedure. They posted and forfeited $50 and were promptly released without a conviction, without having to hire a lawyer, and without ever having to set one foot in a courtroom.

In contrast, it appears that all of the January 6 defendants who entered the Capitol, even the least culpable, are being prosecuted for federal misdemeanor offenses in the U.S. District Court.  The U.S. Attorney’s Office is insisting on a plea or a trial for all of them, with no possibility of pretrial diversion that would result in the charges being dismissed in return for some period of good behavior and/or community service.  Further, the government is insisting that each convicted defendant agree to pay “restitution” of at least $500 for damage done to the Capitol, even if the government has no evidence that the defendant personally engaged in any destruction of property.

Thus, each January 6 defendant faces multiple court appearances in D.C. federal court, where a lawyer is a necessity, and the result will be a criminal conviction on his or her record unless the defendant goes to trial and secures an acquittal. In the event of a conviction, the defendant faces jail time or probation or both, and there is no possibility of ever sealing or expunging the case.  The process is expensive, time-consuming, and nerve-racking.  In sum, the difference in the treatment of the Kavanaugh protestors and the January 6 defendants is quite stark.

A direct comparison of the cases of the first person to be sentenced in one of the January 6 cases, Ms. Anna Morgan-Lloyd, and the case of one of the Kavanaugh protestors, Dr. Sandra Steingraber, illustrates the differences. The January 6 defendant, Ms. Morgan-Lloyd, did not personally engage in any violence, property destruction, or disruption of the Congress.  She entered the Capitol, but not the House or Senate chambers, and remained in a side hallway of the building for ten minutes before leaving, apparently of her own accord. Nonetheless, she was locked up for two days in pre-trial detention following her arrest.  She pleaded guilty to a federal misdemeanor offense and was sentenced to three years of supervised probation, which means she will have to report to a probation officer regularly, won’t be able to possess a gun while on probation, will need permission to travel in some circumstances, and must comply with various other requirements.  The district court judge warned her that if she violates any of the conditions of her probation, she will be jailed, saying, “probation comes once in a lifetime.”

By contrast, the Kavanaugh protestor, Dr. Steingraber, actually disrupted the Senate in the midst of its official business of voting on a Supreme Court Justice’s nomination.  While she screamed in protest from the Senate Gallery, the voting was halted until she could be hauled away by Capitol Police officers. She was arrested and received a post and forfeit disposition.  She paid $50 at a D.C. police station and was released the same day.  That was the end of her case.

There is no justification for this gross disparity in the treatment of two individuals who have engaged in comparable conduct.  There is even less justification for treating scores of January 6 defendants, with cases similar to Ms. Morgan-Lloyd’s, far more harshly than the scores of Kavanaugh protestors. None of these defendants, whether Kavanaugh protestors or January 6 protestors, were charged with conspiracy or concerted illegal action with others. They stand before the law to be held responsible only for their own alleged conduct, not the acts of others who may have committed similar or even more serious offenses at the same event. It is not a valid justification for the disparity that the January 6 defendants committed their alleged offenses during an event that prosecutors perceive as worse than the Kavanaugh protests. That is guilt by association and without any due process; concepts that American jurisprudence long ago rejected as tyrannical.

The January 6 Defendants Could Be Treated as the Kavanaugh Protestors Were Treated

For technical reasons, the “post and forfeit” process can’t be used directly with January 6 defendants who weren’t arrested in D.C. on that date, as the Kavanaugh protestors were. The January 6 protestors are being charged after the fact and transferred from their home states back to D.C. To legally do that, authorities cannot use the local D.C. disorderly conduct statute that ordinarily serves to charge disorderly conduct in the “post and forfeit” process. Instead, a federal charge is required to justify bringing people back to D.C. to face charges. However, that does not mean that these defendants cannot be treated comparably to the Kavanaugh protestors, even now. Once a January 6 defendant is returned to D.C. on the basis of a federal misdemeanor charge, there is absolutely nothing that prevents the government from offering that person diversion in the federal court or from changing the federal charge to a local charge and prosecuting it in Superior Court, where pretrial diversion of minor charges is commonplace. Indeed, the U.S. Attorney’s Office proclaims proudly that it uses a broad array of diversion programs — applied on an “individualized” basis — in order to “enhanc[e] a fair and efficient criminal justice system.”  Notably, these programs are only available in Superior Court based on D.C. charges.

This points up again how the January 6 cases are being prosecuted differently from similar cases. There is a form of pre-trial diversion that is sometimes available in federal court, called a deferred prosecution agreement, which involves dismissing the charges if a defendant commits no new offenses or adheres to other conditions over a period of time.  However, according to persons familiar with the plea negotiations in the January 6 cases, the government has stated that such agreements are “off the table” for the January 6 cases.

It is difficult to see the disparity in the treatment of comparable non-violent misdemeanor cases with similar facts as anything other than a gross abuse of prosecutorial power.  The public, the media, and Republican lawmakers should demand that the flagrant disparity in the treatment of these January 6 protestors cease immediately.  Scores of lives will be seriously and unnecessarily damaged if this abusive process is allowed to continue, to say nothing of the destruction of the public’s faith in the neutrality of the criminal justice system.