Federal judges are wrestling with a dilemma as dozens of cases stemming from the Capitol riot move toward sentencing: Should they throw the book at everyone who streamed into the building on Jan. 6, or just those who committed violence and destruction?
Many of the judges on D.C.’s federal bench have advocated for stiff sentences in most cases on the grounds that breaching the Capitol was an unconscionable crime against American democracy. And they’ve overwhelmingly rejected comparisons lodged by accused rioters that the violence of Jan. 6 is akin to the unrest that plagued Portland, Ore., and other American cities alongside last year’s racial justice protests.
The dispute flared anew on Monday when Judge Tanya Chutkan pointedly rejected her own colleague’s comparison between the Jan. 6 mob and the rioters who exploited the Black Lives Matter demonstrations last year.
“Some have compared what took place on Jan. 6 with other protests that took place throughout the country through the past year and have suggested that the Capitol rioters are being treated unfairly,” Chutkan said during a sentencing hearing. “I flatly disagree.”
Although she didn’t mention any names, it seemed unmistakable that Chutkan was responding — nearly point by point — to the analysis of Judge Trevor McFadden, who serves alongside her on the U.S. District Court in Washington, D.C., where more than 600 defendants are facing charges for their roles in the Capitol attack.
On Friday, McFadden said federal prosecutors had undercut themselves on Jan. 6 prosecutions by doing little to impose legal consequences for those who rioted during the racial-justice protests last year.
“I think the U.S. attorney would have more credibility if it was even-handed in its concern about riots and mobs in this city,” he said during another sentencing hearing, according to The Associated Press.
The judges’ dueling comments reflect what appears to be a developing schism in the federal judiciary over how to treat the lower-level defendants who glommed on to the insurrection attempt by extremists who led the Jan. 6 charge.
Attorney General Merrick Garland, who once worked in the same courthouse with the judges staking out positions in the Jan. 6 cases, defended prosecutors Monday against complaints that some Capitol rioters were allowed to settle their cases by admitting to misdemeanors.
“I’m quite aware that there are people that are criticizing us for not prosecuting sufficiently and others complaining we are prosecuting too harshly,” Garland said during a video interview for The New Yorker Festival. “This is part of the territory for any prosecutor in any case.”
While many of the most serious cases remain pending — and likely will extend deep into 2022 — dozens of misdemeanor cases are being resolved at a suddenly rapid pace. And it’s giving judges their first crack at weighing in on the broader character of the Capitol assault.
McFadden, who was appointed by former President Donald Trump, appears to be a lone voice, for now, on the D.C. bench. Several judges have expressed sentiment similar to Chutkan’s: that those who joined the Jan. 6 mob helped overwhelm police and stretch resources in a way that aided the violent extremists to threaten the transfer of power.
“What happened … was nothing less than a violent mob trying to prevent the orderly, peaceful transfer of power as part of an election,” said Chutkan, an appointee of former President Barack Obama. “That mob was trying to overthrow the government. … That is no mere protest.”
Judge Emmet Sullivan, an appointee of former President Bill Clinton, lamented last week that during the events of Jan. 6, a number of ordinary, law-abiding Americans “morphed into terrorists.”
At sentencing hearings last week, Judge James Boasberg made clear he agreed that those who remained nonviolent on Jan. 6 effectively encouraged the violence.
“There are few actions that are as serious as the one this group took on that day,” said Boasberg, an Obama appointee. “If there are five people or eight people or 10 or 15, there’s no riot. … The encouragement and incitement of other people is what led to the violence.”
And Judge Paul Friedman, a Clinton appointee who sentenced Jan. 6 defendant Valerie Ehrke to probation, said he anticipated her light sentence would be the exception, not the norm, for crimes that threatened democracy.
At the sentencing Monday for Matthew Carl Mazzocco, Chutkan acknowledged that the Texas resident hadn’t broken into the Capitol, damaged any property there or engaged in violence, but she said he and others who illegally entered the seat of Congress bore some responsibility for the mayhem that unfolded.
“People who were committing those violent acts did so because they had the safety of numbers — one of whom was Mr. Mazzocco,” Chutkan said.
McFadden’s statement echoed arguments that have been lodged by many of the defendants, by Trump himself and by his allies on Capitol Hill.
During the Friday sentencing hearing, McFadden scolded the defendant before him, Danielle Doyle, for “acting like all those looters and rioters last year. That’s because looters and rioters decided the law did not apply to them.”
The judge said Doyle’s behavior was not excusable, called it a “national embarrassment,” and again likened it to the police brutality protests following the death of George Floyd last year that made “us all feel less safe,” the AP reported.
McFadden, notably, has taken a hard line with some Jan. 6 defendants. He ordered the pretrial detention of Timothy Hale-Cusanelli, an Army reservist who sported a Hitler mustache to his job on a naval weapons base, citing Hale-Cusanelli’s violent rhetoric and embrace of what he believed was an oncoming civil war.
However, on Monday, Chutkan took exception to McFadden’s suggestion that Jan. 6 rioters were being treated unfairly harshly. She argued that, in fact, many of those charged in the unrest at the Capitol had been treated more gently than those arrested for rioting alongside the Black Lives Matter protests.
For example, Chutkan said, the Capitol suspects weren’t arrested on the spot and were allowed to remain in their home districts for many of the proceedings. And prosecutors have agreed to allow many of them to plead guilty to a single misdemeanor charge, Chutkan noted, despite charging most with at least four offenses.
Chutkan also said the basis for the Black Lives Matter protests — racial justice — differs sharply from the purpose of the Jan. 6 event, assembled by Trump as he promoted discredited claims that the 2020 election was stolen. The defendant she sentenced Monday, Mazzocco, traveled to the Capitol for Trump, not for a democratic cause, she said.
“He went to the Capitol in support of one man, not in support of our country,” Chutkan said.
McFadden and Chutkan didn’t differ in just their assessment of Jan. 6 misdemeanor crimes. The two also diverged on the sentences they handed down in the cases they handled.
While McFadden gave Doyle a sentence of two months probation and a $3,000 fine, Chutkan hit Mazzocco with 45 days in jail — a stiffer punishment than the three months of home confinement prosecutors had asked for.
“This court believes that a sentence of probation does not reflect the seriousness of the crime. … There have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home,” Chutkan said Monday. “The country is watching. … If Mr. Mazzocco walks away with probation and a slap on the wrist, that’s not going to deter anyone from trying what he did again.”