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Merrick Garland, get tougher on the insurrectionists

Opinion by Elie Honig

At his confirmation hearing in February 2021, Attorney General Merrick Garland said all the right things about the January 6 Capitol insurrection. He vowed to fully prosecute the "heinous attack that sought to disrupt a cornerstone of our democracy." When asked if he would look "upstream" to hold accountable the people who had organized and incited the insurrection, Garland vowed to "pursue these leads wherever they take us."

Thus far, Garland's actions have not matched his rhetoric. On Garland's watch, the Justice Department has made an inexcusably weak showing in its January 6 prosecutions. Most recently, the Justice Department has offered lenient plea deals, many of them for misdemeanors -- enabling several January 6 insurrectionists, including the individual who wore a "Camp Auschwitz" T-shirt to the attack, to reduce the charges against them.

Back when I was a first-year federal prosecutor, we'd get assigned every few months to do "misdemeanor duty." We'd have to go over to the courthouse and process the pettiest of federal cases -- smoking in a Veterans Administration hospital, low level theft of mail, a fistfight at a federal park, that kind of thing. While the statutory maximum technically is up to one year in prison, nobody got locked up for a misdemeanor. Usually, it was just a quick guilty plea, a fine and an admonition not to do it again.

Plainly, every Capitol insurrectionist committed misdemeanors, likely many of them -- trespassing on federal property and disorderly conduct, for example. And many defendants have been charged with these low-level crimes.

But every January 6 defendant could also be charged with more serious felonies. For example, the Justice Department has charged some but not all defendants with the felony offense of obstruction of an official proceeding -- specifically, the constitutionally mandated counting of electoral votes by Congress. And frankly the Justice Department should have charged every January 6 defendant who entered the Capitol with this crime -- this is precisely why they stormed the building.

Even sedition, a serious felony, can be legally satisfied by a showing that a defendant sought "by force to seize, take, or possess any property of the United States contrary to the authority thereof." We all saw the January 6 insurrectionists take over the Capitol building by force, and they certainly did not have permission to do so.

Indeed, a federal judge in Washington, DC, Beryl Howell, recently called out the Justice Department publicly for its lenient treatment of January 6 defendants.

"[D]oes the government have any concern given the factual predicate at issue here, of the defendant joining a mob, breaking into the Capitol building through a broken door, wandering through the Capitol building and stopping a constitutionally mandated duty of the Congress and terrorizing members of Congress, the vice president, who had to be evacuated?" Howell asked.

Howell added, "Does the government, in agreeing to the petty offense in this case, have any concern about deterrence?"

This is an important point. Deterrence -- sending a message to the defendant and to the general public that conduct is unacceptable and will be punished seriously -- is a legitimate goal of prosecutors and the court system alike. A spate of misdemeanor pleas achieves the opposite effect, signaling that the January 6 cases are petty or insignificant.

The Justice Department has an enormous January 6 caseload, with over 500 cases charged. But that's no excuse to take the easy or expedient way out with misdemeanor pleas. These cases are too important, and the conduct of the January 6 insurrectionists was too serious.

Garland said all the right things before he took office. Now he needs to make good on them.