On Monday afternoon several hundred “Green New Deal” supporters protested outside the White House, demanding the creation of a “civilian climate corps.” As part of the protests, they unlawfully blocked some entrances onto the ground and “occupied” White House guard shacks at those entrances. Members of the Metropolitan Police Department arrested the protesters and transported them away for processing.
Conservative media lit up with protests and howls of outrage over the fact that these “Democrat-friendly” protesters seemed to be treated far more favorably than the conservative protesters who attended the January 6 protests and are being hauled into court, held in custody for short periods of time, and be dragged through the criminal justice system where they need lawyers to represent them with the weight of the Justice Department crashing down on their heads.
And they are right. There are two processes being employed for two groups of demonstrators with political motives when neither engaged personally in any form of violence or property destruction. My new RedState colleague — and my good friend and collaborator Leslie McAdoo Gordon (one “A” — I learned that lesson), has laid out in exacting detail exactly how it is the Biden DOJ has departed from decades of practice in the handling of peaceful political protesters in Washington DC — it’s not like this doesn’t happen there with some frequency.
A cornerstone of the US criminal justice system is that criminal defendants are punished for their acts and not the acts of others UNLESS they are charged as being part of a conspiratorial enterprise.
That cornerstone should come into play with regard to the “tourist protester cases” — best exemplified by Anna Morgan-Lloyd, the Indiana grandmother sentenced to 3 years of probation and ordered to pay $500 in restitution last week on a “petty misdemeanor” offense where her actual criminal conduct was nothing more than being inside the Capitol when she was not allowed to be inside the Capitol. The facts, as set forth by the Biden DOJ, are that she went along with the larger crowd and entered the Capitol through open doors. Inside she took some pictures with her phone, and she left after 10 minutes without doing anything else.
Leslie’s story compares the handling of her “protesting” against the “protesting” by liberal activists who opposed the nomination and confirmation of Justice Brett Kavanaugh to the Supreme Court, where the actual conduct was much more outrageous than Morgan-Lloyd’s and constituted criminal conduct INSIDE the Capitol that had been planned with a larger group.
As Leslie’s story explains, there is a long-established practice in DC law enforcement for handling political protests like the one that happened yesterday. After the arrest — which the protesters all understand will be the outcome of their actions — the protesters are issued a form of citation for violating DC municipal code provision covering “illegal” protest activities, they post a $50 cash bond at the police station, and they are released. If they do not appear in court within a certain period of time, the $50 is forfeited and the case is closed without further proceedings. For all practical purposes, it’s a $50 fine.
This process was put in place by the Department of Justice working with the DC Police, with one purpose being to avoid choking DC court calendars with hundreds of cases involving arrests at political protest gatherings in DC. Not just the court calendars, but the caseloads of prosecutors inside the DC U.S. Attorneys’ Office. The “post and forfeit” system requires no participation on the part of the prosecutors or the DC courts.
The Biden DOJ decided that a different process should be used with regard to the class of January 6 “tourist protesters” whose actual conduct is not different in any meaningful way from the typical political protests that regularly take place in Washington DC.
That is the change in policy that reflects an abuse of the criminal justice system by the Biden DOJ based on a political point of view.
That is where the Biden DOJ is vulnerable to a legal attack.
The arrests and handling of the “Green New Deal” protesters is a problem for Biden DOJ because by employing the “post and forfeit” process for them, the Biden DOJ has now bookended its abusive treatment of the January 6 “tourists protesters” in such a fashion that the argument can be made that the Biden DOJ has not changed the procedures for how political protesters are handled — except for the January 6 “tourist protesters”. That opens them up to a legal challenge that the handling of the January 6 “tourist protesters” is based on the political point of view that was being expressed that day, not because of what they actually did. What they actually did — being in a place they weren’t allowed to be — is not different than what the “Green New Deal” protesters did yesterday.
This allows defense attorneys to legitimately argue — and I believe one or more district court judges will be receptive to — that the January 6 “tourist protesters” are actually being punished because they were present in the Capitol at the same time others were engaged in violent or destructive acts. The harsh treatment they are being subjected to by the Biden DOJ is nothing more than an improper and illegal assertion of “collective” guilt imposed on individuals based on the conduct of others when there is no conspiratorial crime alleged.
It is “guilt by association” with the “association” being their presence inside the Capitol at the same time others with whom they had no involvement were committing felonies therein.
What is needed is conservative legal foundations willing to pay the costs of such defenses on behalf of January 6 “tourist protesters” who are willing to stand up to the Gestapo-like tactics of the Biden DOJ.
I don’t use that analogy lightly, but in this case, it fits.