*Published 3/22/2021

Elie Honig:

From CAFE, this is Third Degree. I’m Elie Honig. I’ve never seen more criminality committed by more people at one time, on more open display captured on more cameras than during the January 6th Capitol insurrection. We all watched it happen. Crimes being committed right in front of our faces, right on camera, right on live TV. And then we watched it again and again, the same clips and also as new video clips emerged. We had a whole impeachment about this. We’ve seen endless footage on TV, on social media. And the thing is every video of the Capitol riot shows dozens of other people holding up their cell phones, making even more videos. So there is plenty of evidence of the crimes that were committed. Now, it’s been over two months. So where do we stand on DOJs prosecution of the Capitol rioters and how do we assess DOJs response so far? My bottom line grade here is incomplete and needs some work.

This is not the good kind of incomplete. This is the kind of incomplete you would get from your teachers and think, oh boy, I better step it up a little bit. Now I know Merrick Garland’s confirmation as attorney general was held up. The Senate wasted about five weeks. He wasn’t even confirmed until March 10th. By comparison, Eric Holder and Jeff Sessions, the first attorneys general of the prior two administrations, they were both confirmed in early February. There’s blame to go around here. The Senate is controlled by the democratic party, but Mitch McConnell and others slowed things down. So Garland has only been in office two weeks, I know. I’m willing to give him a little leeway, but he’s got some ground that he needs to make up and quick. Though here are the biggest issues on the table. And these will determine whether DOJ ultimately brings about an effective response or a toothless one.

First Of all, DOJs performance so far. Based solely on the numbers, DOJ has given us a fairly impressive and robust response. They’ve charged over 300 people already. DOJ has said they expect over 100 more prosecutions. Among those prosecutions, we’ve seen at least 48 people with ties to extremist groups. We saw 10 defendants charged with a conspiracy relating to the Oath Keepers. We saw four prominent members of the Proud Boys recently charged. Now, some people are saying, “Well, what’s taking so long? Why aren’t there more? All these crimes are right there on tape”. Here’s the reality though. Every one of these charges takes time and effort and personnel and resources. As a prosecutor sometimes we used to say, “Look, it’s not a McDonald’s drive through. You can’t just order up prosecutions”.

To be more specific, for each of these cases, it’s not as simple as there’s a person on tape. You have to then identify each specific person. That can be done, but it’s not necessarily easy. Then you have to figure out and be able to prove exactly what that person did. Entering the Capitol is one thing, it’s a crime. But then you want to figure out, well was this person involved in more serious crimes? Were they involved in destruction of property? Were they involved in any of the threats or the conspiracies to kidnap people? Whatever the facts may show. It’s not necessarily rocket science, but it’s not just the snap of the fingers. It takes work. They’ve arrested over 300 people so far. That’s a solid star.

Of course, nobody has actually been convicted yet. And you may be wondering, well why? What’s wrong? 300 arrests, no convictions. That does not concern me. Federal cases take time. They tend to move slow. It’s not an assembly line, like some state criminal justice systems. And I say that knowing firsthand, because I worked as a New Jersey state prosecutor as well. Those cases tend to move more quickly, get to pleas more quickly in some instances. Now, virtually every defendant pleads not guilty originally. In the federal system, they’ll then get their discovery, which is the evidence against them. They need to go through the pre-trial process. I do expect to start seeing guilty pleas, many of them and soon. But, the numbers alone don’t tell the whole story. We need to dig a little deeper. And this is where the real challenges for DOJ emerge, which brings us to point two. The need to expand out and up beyond the rioters who are actually inside the Capitol.

Now, remember Merrick Garland promised that he would follow the leads wherever they go. Here’s his quote. During his confirmation hearing.

Merrick Garland:

We begin with the people on the ground and we work our way up to those who were involved and further involved. And we will pursue these leads wherever they take us.

Elie Honig:

Now, Merrick Garland needs to make good on this because thus far, nobody has been charged other than those who physically were present inside the Capitol. Nobody who coordinated behind the scenes, nobody who incited the attack but didn’t go down to the Capitol. And if you think I’m talking about Donald Trump and Rudy Giuliani, yes indeed I am. DOJ absolutely has to investigate them both in a serious way for inciting a riot. I’ve argued before, I think they can be charged with that, particularly Donald Trump. Merrick Garland has to make sure they don’t just brush by that. They give that very serious consideration.

Also, remember it’s been reported that members of Congress, sitting members of Congress were in contact with rioters in the days leading up to January 6th. First of all, we need to know why? What’s going on there? Why are sitting members of Congress in direct communication with people who rioted right before the riot? Now, proving that the communication’s happened should be fairly easy. Cell phone records will show you, representative so-and-so spoke with this person who ended up inside the Capitol. By the way that in itself is sort of strange. And if the excuse or the explanation is constituent services, count me skeptical. How many times have you ever been in direct contact with your elected representative or Senator? If you’ve ever tried by the way, at all, in all likelihood you’re going to be connected with some sort of staffer.

So the fact that you have actual elected members in contact with these people, I think itself raises some flags. The key of course is proving what was said. And you can get that potentially from seizing cell phones from searches, from interviewing people. What did you say? What was this conversation? People may flip on each other. That’s another key road that DOJ needs to go down. Let’s see what DOJ does. But I will tell you, there’s no way on earth that only the people who were physically inside the Capitol broke the law and that they were the only people who broke the law that day. We will see if DOJ makes good on one of the attorney general Merrick Garland’s very first promises he made to the American people.

And then third, the highest stakes cases. The vast majority of cases that have been made so far have related essentially to illegally entering the Capitol. Trespass, interference with Congress, some charges of theft and destruction of property. We’ve also seen a handful of conspiracy cases charged at those domestic extremist groups. And that’s good and that’s important, but there absolutely are more serious charges that need to be pursued and brought here. First of all, the death of Capitol police officer Brian Sicknick. Now two people have been charged with assaulting Officer Sicknick apparently with this bear spray. A lot of people are asking, why is that not charged as a murder? Here’s my answer as far as I can tell.

First of all, the prosecution’s going to need to prove causation that, that assault with bear spray or whatever it was, led to officer’s Sicknick’s death. You need to get the autopsy. You need to get the toxicology, which is what’s in the blood. You need to get those reports back, that can take time. And you need to show some level of intent. There’s this thing called the felony murder rule, which says if you’re committing certain crimes and then death results as part of those crimes, you’re liable. So if you go rob a store and somebody you’re with takes out a gun and shoots the cashier, you’re liable for that murder. Even if you didn’t do it because you were part of the crime of robbery.

The problem here though, is not every underlying crime counts as a predicate, as we call it, to charge felony murder. I’m going to read you the list of charges that can be used to charge felony murder under the federal system. And as I read them, ask yourself, do any of these apply to what happened inside the Capitol? Arson, escape, kidnapping, treason, espionage, sabotage, sexual abuse, child abuse, burglary, or robbery. You can see there’s not any great obvious fit. The closest fit may be burglary because they broke into the place. Some people did steal some things, but can the people who assaulted officer Sicknick be charged with that burglary? My point here is really a couple things.

One, it’s a complicated charge to bring a murder charge against Officer Sicknick. But two, give DOJ a little bit of time here. What prosecutors often do is they bring a charge that they can immediately prove in a case like this, just so they can get the guy in handcuffs, get the guy arrested. DOJ can still do its workup, can still get its forensics, can still do its legal analysis. And if they decide that a murder charge is warranted here, they absolutely can add that back into the case.

The second big outstanding issue is the placement of bombs at the RNC and the DNC. Now the FBI released video of this last week. You can see the person he’s wearing a hood and a mask certainly appears to be a male by the build and the body language. You can see he has a backpack. The most important detail as you can see, he wears a very specific pair of sneakers. I’m confident they’ll find this guy, maybe not based solely on the video, but somebody will come forward. Somebody will flip. Maybe he bragged about it. And by the way, putting together bombs like that is awfully hard to do in complete isolation. I do have faith that the FBI will find this guy. DOJ will charge him. I think they have enough of a lead, but the clock is ticking.

DOJ has done an acceptable job so far. Not much more, not much less and ultimately how DOJ follows up here will be the first major test for the new attorney general. Thanks for listening everybody. Please keep on sending us your thoughts, comments or questions at letters@cafe.com.

Third Degree is presented by CAFE Studios. Your host is Elie Honig. The executive producer is Tamara Sepper. The senior producer is Adam Waller. The technical director is David Tatasciore. The audio and music producer is Nat Weiner. And the CAFE team is Matthew Billy, David Kurlander, Sam Ozer-Staton, Noa Azulai, Jake Kaplan, Geoff Isenman, Chris Boylan, Sean Walsh, and Margot Maley.