There is an exchange early in the movie “Outlaw Josey Wales” where two characters are arguing over the ongoing efforts of the Union Army to round up — and execute — Confederate soldiers after the Civil War.
A former Confederate officer says to the Union officer, “Killing Wales is the end of it.”
The Union officer replies, “Doin’ right ain’t got no end.”
I’m convinced that the latter sentiment is the official policy of the Democrat Justice Department in the Biden Administration. The simple reality is that prosecutors in the DC US Attorney’s Office are not exercising prosecutorial discretion to decline to bring charges against individuals who were merely present inside the Capitol on January 6, with no evidence that they did anything else.
Most of the attention remains focused on the small number of cases where the government prosecutors have charged multiple individuals in conspiracies involving pre-planning and organizing of groups to Washington DC on January 6 with the purpose and goal of preventing the meeting on Congress from taking place to “certify” the vote of the members of the Electoral College. Those cases, as a general proposition, involve claims that the named defendants engaged in individual and collective acts of violence and/or property destruction.
A larger number of cases involved more individualized allegations of violence and property destruction where the named defendant is alleged to have acted in a spontaneous fashion as part of a larger crowd, and without any kind of prior organizational planning by a larger group. These defendants are also charged with felonies, including very serious felonies where they were involved in assaults on law enforcement officers.
The third — and by far the largest — category of cases is what I would call the “tourist protester” cases. These are people who were at the Capitol on January 6 for no purpose other than to express their political views regarding the outcome of the election. But as the events of the day developed, they moved along with the larger crowd and entered the Capitol building at some point in time. The cases are all charged as misdemeanors (maximum 1-year sentence) or “petty” misdemeanors (maximum 6-month sentence).
On Wednesday last week, Anna Morgan-Lloyd — a defendant among the third group of cases — pled guilty and was sentenced all in one hearing to a “petty misdemeanor” of unlawful parading on the Capitol grounds. The judge in her case sentenced her to three years of probation, 120 hours of community service, and $500 in restitution. Morgan had gone to Washington with her friend, entered the Capitol along with the crowd, remained inside for 10 minutes, and did nothing while inside other than take some pictures with her phone.
On Saturday morning I wrote about the controversy that emerged over remarks she made in a letter written to the Judge in advance of the sentencing hearing in which she described books she had read and movies she had watched since her arrest. Some saw her description and explanation as renouncing the motivations that brought her and others to the Capitol to protest on January 6.
On June 24, 2021 — just 4 days ago — the FBI arrested David Lesperance of Indian Harbour Beach, Florida, after obtaining a criminal complaint charging him with misdemeanor violations related to his actions in entering the Capitol on January 6 — putting him in the “tourist protester” class of cases.
The FBI Agent’s affidavit filed in support of the criminal complaint is very typical of numerous affidavits I’ve read in these misdemeanor cases. If you’re interested, the Department of Justice has a website where it has listed all the named J6 defendants in alphabetical order and included links to the various documents related to their cases.
- The FBI received a “tip” from someone that particular person was inside the Capitol on January 6 — oftentimes based on photos or videos the person posted on social media during the hours/days following January 6 which were seen by others.
- The FBI located the online posting.
- The FBI used subpoenas or search warrants to obtain records from cellular companies or internet service providers to obtain photos or videos stored in those accounts allowing them to identify the suspect among the crowd of protesters.
- The FBI reviewed surveillance of closed-circuit television cameras which cover every square foot of the Capitol to track the suspect’s movements going into and while inside the Capitol.
- the FBI contacted the suspect and conducted an interview during which the suspect admitted going to Washington on January 6 and entering the Capitol as part of the crowd.
The photos and video of Lesperance show that he entered the Capitol and took some pictures with his phone while inside. Nothing else.
15. Law enforcement reviewed CCTV images and body-worn surveillance footage from the U.S. Capitol. Both depict LESPERANCE inside the U.S. Capitol on the afternoon of January 6, 2021.
That’s all the complaint alleges.
Nearly six months after the event, the FBI arrived on Lesparance’s doorstep with a warrant and took him before a federal magistrate in Florida for his initial appearance on the charges filed against him.
Lesperance’s arrest, however, is just the most recent. The last several weeks have seen a series of similar arrests on similar charges, with the nature of the investigation that led to the arrest being almost identical to that described above.
What this means is that the Democrat Justice Department intends to continue to file criminal charges against EVERY PERSON who entered the Capitol on January 6 when they can verify the identities of the persons captured on videotape.
That means that anyone who attended the January 6 protest and went inside the Capitol, but has not yet been charged, will wake up every morning until the statute of limitations expires and wonder, “Will today be the day the Democrat Justice Department arrests me because I protested the election of Joe Biden?”
The argument could be made that, having opted to go down this path early on, the Democrat Justice Department needs to continue to identify and bring charges simply as a matter of even-handedness. Suspects whose identity has been harder to come by should not benefit by avoiding prosecution compared to individuals who the FBI was able to identify in the days and weeks that followed January 6.
While that might be true, the heavy-handed policy of “no exceptions” which is being followed only ensures that the damage to the country created by political divisions which exist will only get worse. It is a statement by the Biden Administration that it intends to criminalize to the greatest extent allowed by law the sentiment following the 2020 election that the outcome was not legitimate.
More significantly, it is a legitimate basis upon which the segment of the population who politically oppose the Biden Administration can reasonably claim the Administration is employing the criminal justice system to delegitimize that political opposition by declaring it to be based in criminality.
It is possible that at some point the political leadership inside the DOJ might say “enough” and stop bringing new cases. That is nothing more than an expression of “prosecutorial discretion” as it is a matter of objective fact that DOJ cannot treat every similarly situated criminal suspect in identical fashion in all cases across the country. There is no compelling reason to do so with the “tourist protester” cases regarding January 6.
But so far there are no signs of that change in policy taking place.