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April 16, 2024
Latest accounting of Jan 6 prosecutions and sentences
The Supreme Court heard oral argument today in Fischer v. US to consider the reach of a federal criminal statute used to prosecute some of the January 6 Capitol rioters. Press reports suggest a number of the Justices were skeptical of how the Justice Department was seeking to apply federal criminal law. I hope to comment on this front after I have a chance to listen to the oral argument. In the meantine, the Washington Post has this new article with an up-to-date accounting of just how many persons have been subject to prosecution thanks to the events of Januarry 6. Here are excerpts:
The investigation of the Jan. 6, 2021, Capitol attack is already the largest criminal inquiry in Justice Department history, federal prosecutors have said. And even after more than three years, it has shown little sign of slowing down.
Every week, a few more rioters are arrested and charges against them are unsealed in Federal District Court in Washington. Prosecutors have suggested that a total of 2,000 or 2,500 people could ultimately face indictment for their roles in the attack.
More than 1,380 people had been charged in connection with the attack as of early this month, according to the Justice Department. Among the most common charges brought against them are two misdemeanors: illegal parading inside the Capitol and entering and remaining in a restricted federal area, a type of trespassing.
About 350 rioters have been accused of violating the obstruction statute that the Supreme Court is considering at its hearing, and nearly 500 people have been charged with assaulting police officers. Many rioters have been charged with multiple crimes, the most serious of which so far has been seditious conspiracy.
Almost 800 defendants have already pleaded guilty; about 250 of them have done so to felony charges. Prosecutors have won the vast majority of the cases that have gone to trial: More than 150 defendants have been convicted at trial and only two have been fully acquitted.
More than 850 people have been sentenced so far, and about 520 have received at least some time in prison. The stiffest penalties have been handed down to the former leaders of the Proud Boys and Oath Keepers, far-right extremist groups that played central roles in the Capitol attack.
April 16, 2024 at 04:24 PM | Permalink
Comments
This sorry episode will not be officially over until the ring leader, Donald John Trump, is sentenced in Federal Court to what should be a very stiff penalty that will assure that he spends his remaining days behind prison walls. That day is coming and for those who do not think it is, they are deluding themselves as many of the MAGA-ites do.
Posted by: Eric Hicks | Apr 16, 2024 8:36:19 PM
Ha ha. It's always so funny to see libs embrace vague charges etc. simply because Orange Man Bad.
Trump lobbied elected officials to vote a certain way. That cannot be a crime.
Posted by: federalist | Apr 17, 2024 9:11:08 AM
federalist --
It's a hoot to see how the liberals are constantly breathless for "second chances" and compassion and "restorative justice" and all the rest of it -- until the defendant is a political opponent, which sees them instantly pivot to a thundering THROW AWAY THE KEY.
But fear not, when the next child rapist defendant shows up (which never takes long), they'll be right back to their usual line.
Posted by: Bill Otis | Apr 17, 2024 9:59:49 AM
Though I have not finished listening to the oral argument, I largely concur with your observation that the usual pro- and anti- defendant voices here mostly sounded quite different because of a different type of defendant. (We often see this in white-collar settings as well.)
Assuming SCOTUS reverses the conviction in Fischer, Bill and federalist, I would be keen on your take as to the remedies for the hundreds subject to similar prosecution/conviction/sentencing. Should appeal/2255 waivers get undone (even if DOJ objects)? How about in cases where this charge was threated as a basis to get a plea on other charges? Should judges be allowed to resentence to the same terms on other counts? Should there be any tangible consequences to DOJ, or does it always get to swing for the criminal charge fences with no accountability for legal mistakes that impact hundreds (maybe thousands) of individuals?
Posted by: Doug B | Apr 17, 2024 10:30:39 AM
I think, honestly, the courts should note the politicized prosecutions and basically toss all the prosecutions.
Posted by: federalist | Apr 17, 2024 10:33:31 AM
So, federalist, your view is that judges can and should dismiss any and all criminal charges that they consider "politicized"? Could that apply to every DOJ prosecution in recent years?
Posted by: Doug B | Apr 17, 2024 11:58:00 AM
Doug, I was being somewhat tongue in cheek. The fact is that the feds' prosecutions here, when compared to you know, firebombing, are just so far over the top that they are taking sides in the partisan divide. In another context, it's so bad that even a Biden judge is aghast (the tax return guy). What is a polity to do? Wake up one day and the DOJ is a wholly-owned subsidiary of the DNC?
We are getting there.
Posted by: federalist | Apr 17, 2024 12:57:35 PM
Your concerns are one of many reasons that I want the judiciary (and the legislature as well) to put all sorts of check and balances on the extraordinary powers of prosecutors. I have been preaching from that pulpit --- which includes calling for, eg, limiting acquitted conduct sentencing, getting rid of excessive mandatory mininums, and eliminating sentencing appeal waivers --- for decades now. And that's the essential script for what a polity can do: advocate and support all sorts of check and balances on the extraordinary powers of prosecutors.
Posted by: Doug B | Apr 17, 2024 1:31:09 PM
Doug --
Easy way to squelch appeal waivers: Don't sign it.
P.S. If the Court holds as you want it to (and it seems likely to me that it will), the problem is not with the sentence. What happens is that the conviction itself goes away. The case will then be remanded to the district court for resentencing on the remaining convictions, if any. As to that, the district judge will have pretty much a free hand.
P.P.S. Do you want the executive branch to be co-equal with the other branches, as the Framers designed it, or subordinate? Because it can't be both at the same time.
Posted by: Bill Otis | Apr 17, 2024 11:24:56 PM
Doug --
"Should there be any tangible consequences to DOJ, or does it always get to swing for the criminal charge fences with no accountability for legal mistakes that impact hundreds (maybe thousands) of individuals."
Do your concerns here extend to, say, Fani Willis and Alvin Bragg and Jack Smith? Or do they get to "swing for the fences" when indicting, say, a political opponent?
P.S. As a general matter, prosecutors act properly when indicting under a statute passed by Congress and signed by the President, if at the time of indictment courts have not found the statute defective.
Posted by: Bill Otis | Apr 17, 2024 11:35:35 PM
Doug,
I know you have discussed “acquitted conduct sentencing” in the past.
Would this include when judges allow charges to be dropped as part of a plea arrangement but “reads them into the record?”
Posted by: TarlsQtr | Apr 18, 2024 1:37:12 AM
Master Tarls: when I use the term "acquitted conduct," I mean to reference only conduct clearly underlying a charge/count on which a defendant has been acquitted by a jury after a traditional jury trial.
Bill: hinky convictions get reversed by SCOTUS all the time on all sorts of grounds, though I agree that a SCOTUS rulings that certain conduct is not even covered by a statute as a matter of law would be especially notable. The question I am asking is whether it should be especially consequential -- are all the pleas and waivers and sentences that DOJ aided by hinky prosecutions lead to meaningful remedies for Jan 6 defendants, or does DOJ get to bake an unlawful prosecution cake and eat it, too?
Being a co-equal branch, as I see it, involves having roughly equal say in the application of government power. Ergo, federal prosecutors get to bring charges based on its view of the law, and federal judges review whether those charges are consistent with its view of the law. Notably, federal prosecutors functionally have still a lot more discretionary power in this arena --- they can and often do (perhaps lawlessly) refuse to charge illegal conduct (like all the on-going marijuana offenses) and prosecutors never have to explain or account or defend or have reviewed any declination decisions, and courts really have no way to check those choices (eg, courts cannot initiate charges). In addition, federal judges have little power (though some minor review authority) to shape aspects of the wide array of (typically hidden) discretionary choices that federal prosecutors make when bringing charges or developing evidence to support charges or inventing terms of plea deals or deciding whether and what to appeal.
Meanwhile, I am still looking for textual support for your assertion, Bill, that "the Constitution makes charging an exclusively executive branch function." Do you have any text/cite for that proposition? I am also still trying to understand what this means, since I do not think you mean judges have absolutely no authority to review the legality or constitutionality of charges. If you only mean that only prosecutors can bring charges, that seems sound. But do you mean judges cannot review charges?
Finally, I agree 100% that Fani Willis and Alvin Bragg and Jack Smith and all other prosecutors are to have their charges reviewed by the judiciary on the same terms. That is why I keep asking to defend/explain your "exclusively executive branch function" constitutional claim. That claim would suggest that all of the criminal charges against Donald Trump and every other individual are not subject to any judicial review. That seems like a remarkable claim, and so that is why I keep hoping you will better explain what you mean.
Posted by: Doug B | Apr 18, 2024 9:43:59 AM
Doug --
"Being a co-equal branch, as I see it, involves having roughly equal say in the application of government power."
Nope, that's way too broad to be of any operational value. Being co-equal means that Branch A has no power of supervision over Branch B. Because a supervisor/subordinate relationship is unequal by definition.
"I am still looking for textual support for your assertion, Bill, that "the Constitution makes charging an exclusively executive branch function." Do you have any text/cite for that proposition?"
Why yes I do, and I have you to thank (as I often do). You set it out in YOUR PREVIOUS PARAGRAPH, where you correctly state (emphasis added), "Notably, federal prosecutors functionally have still a lot more discretionary power in this arena --- they can and often do (perhaps lawlessly) refuse to charge illegal conduct (like all the on-going marijuana offenses) and prosecutors never have to explain or account or defend or have reviewed any declination decisions, and courts really have no way to check those choices (eg, COURTS CANNOT INITIATE CHARGES)."
Congress also cannot initiate charges (although it can ask DOJ to do so in a tiny subset of stuff, like contempt of Congress). Hence, since as you say, courts cannot initiate charges, and Congress also cannot initiate charges, that leaves only one branch -- the executive -- that CAN initiate them.
Which is what I've been saying since forever.
It's curious that you so furiously resent the Framers' idea of separated and co-equal authority. Somewhere back there, I'm quite sure you know that this has been central to keeping America free, for however disgusting and sub-human you may take prosecutors to be. (Defense lawyers, by contrast, are as honest as the day is long (at least on December 21)).
Posted by: Bill Otis | Apr 18, 2024 1:33:50 PM
Fani Willis belongs in prison.
Posted by: federalist | Apr 18, 2024 4:44:56 PM
Bill, you sill have not provided any constitutional text/cite for your proposition, but I now understand that your point is only that only federal prosecutors can initiate a federal charge. I am inclined to agree --- though again, I would generally like your text/cite to a passage in the Constitution that supports this assertion, especially if you also think the Constitution precludes judicial review of charges once brought by federal prosecutions.
Bill, can you confirm or clarify that you agree that, once brought, the federal judiciary has authority --- indeed a constitutional obligation --- to consider the constitutionality and legality of any and all federal charges brought by prosecutors?
I do not view such review for legality to amount to, in your venacular, a supervisor/subordinate arrangement. Rather, it is part of the duty of the judiciary to ensure the power of the federal government is used constitutionally and legally. And that's what keeps America free -- subjecting application of government power, especially the power to punish, to the rule of law.
I certainly do not view any prosecutors to be "disgusting and sub-human," though I sense you sometime embrace that view of defense attorneys. Rather, I just recognize that for any and every government agent, the zeal to address whatever they might considered wrongdoing or to take up a good cause, might sometimes lead to making mistaken calls on constitutionally and legally. Same goes, of course, for judges, which is why we smartly have an appellate process to review the work of judges. Likewise, the Constitution, as I read it, calls for judicial review of prosecutor charging. Can you clarify if you agree or disagree with that basic proposition?
Posted by: Doug B | Apr 18, 2024 5:07:56 PM
If we are being originalist, the power to bring charges is neither an executive function nor a judicial function. The framers were very clear that charges were to be brought by grand juries as they trusted neither judges nor the executive branch with that power. The sole role of judges in reviewing the decision of grand juries to charge or not charge would be similar to their role in reviewing the decision of juries to convict or not convict -- whether the charged conduct was a crime (or in the case of a conviction whether there was evidence to support the conviction).
Posted by: tmm | Apr 18, 2024 5:28:10 PM
Excellent and important point, tmm, and supported by the text of the Fifth Amendment. And I will note that grand juries are generally viewed as most closely associated with the judical branch, further undermining Bill's (non-textualst) claims that the Constitution makes charging an exclusive function of the executive branch.
Posted by: Doug B | Apr 18, 2024 5:47:54 PM
Doug --
"Excellent and important point, tmm, and supported by the text of the Fifth Amendment. And I will note that grand juries are generally viewed as most closely associated with the judical branch."
I guess you've forgotten the eight zillion times we have heard on this blog and elsewhere that the prosecutor is so completely in control of the grand jury that he could get it "to indict a ham sandwich." You're a relatively young man, Doug -- your memory should be better than that (and of course it is).
P.S. Courts' "association" with the grand jury is almost entirely ministerial not substantive, as you'd know if you ever practiced before one. Have you?
Posted by: Bill Otis | Apr 19, 2024 12:24:17 AM
tmm --
To your knowledge, can a court order any other branch of government to either bring a charge or to refrain from bringing a charge?
Posted by: Bill Otis | Apr 19, 2024 12:28:27 AM
Bill: I have not practiced before a grand jury because I have never been a prosecutor. But I actually served on a grand jury (as an alternate) about 15 years ago, and it seemed very much like court service -- eg, I was summoned by the county court to the county courthouse, a judge presided over the grand juror selection process in a courtroom, we heard evidence and jurors voted in a special room in the courthouse. (And though I do not want to disclose any case particulars, I can report there there was at least one case where the grand jury voted to bring MORE charges than recommended by the prosecutor and at least one case where the grand jury refused to indict.)
I surmise my grand jury experience is pretty standard, and that's why I stated that grand juries are closely associated with the judical branch. Is the process significantly different in the federal system? Criminal Rule 6 seems to indicate that courts, not prosecutors, summons a grand jury. And I assume in the federal system there is grand jury authority to expand or contract charges so that what the prosecution recommends is not exclusively controlling (even if grand jurors almost always follow what prosecutors recommend).
And, Bill, you sill have not provided any constitutional text/cite for your propositions about executive branch charging exclusivity. I think it fair for me to now conclude that you have no text or cite to support your claim. That's just fine as I now think I understand you are making a very modest non-textualist structural claim only about the initation of charges, not about limits on judicial review of charges once brought. And this serve as yet another example that non-textual claims are central to everyone's own understanding of our Constitution.
Posted by: Doug B | Apr 19, 2024 9:24:52 AM
Bill, I know of no authority to compel any prosecutor (state or federal) to bring a charge.
As to decline from bringing a charge, it would be limited to cases in which the purported charge is not a valid charge.
If the alleged conduct is a crime, subject to the caveat that the grand jury has the power to make the formal charging decision (and my personal opinion is that the right to a grand jury should be incorporated under the Fourteenth Amendment), the prosecutor is free to reduce or dismiss the charges as the prosecutor deems fit.
There are circumstances (e.g., speedy trial/Youngblood violation) where a judge can force the prosecutor to dismiss,and, after a trial, a judge can dismiss/reduce a charge based on sufficiency of the evidence.
Doug B, my take on it (which is based in large part on Professor Amar's writings on this issue) is that the grand jury was intended to be one of the forms by which the people would have a role in the judicial process. The nature of the process (multiple cases over an extended period) gives the prosecution a large input into the grand jury's working, but the duty of judges in selecting a grand jury and giving a charge to the grand jury is to get a fair panel that will require the prosecution to present the evidence that warrants the filign of charges.
Posted by: tmm | Apr 19, 2024 1:45:59 PM
Thanks, tmm. I find Prof Amar's work in this space fascinating, and he always has me thinking that a "Court" is properly comprised of both judge and (petit) jury. That's why I am inclined to think of summonsing judge and grand jury as a kind of charging court within the judiciary. What your comment got me to wondering is whether, in modern or prior times, any (state or non-state) actors other than a prosecutor could urge a grand jury to indict. I assume that would be verboten in modern times, but was is perhaps a practice in the colonial period before there were many prosecutors?
As for the branches in charge of prosecuting, a little research led me to a draft article stating: "The Founding era constitutions often placed attorneys general and prosecutors under the judiciary article of their constitutions." https://www.law.berkeley.edu/wp-content/uploads/2015/04/Shugerman-Earl-Warren-chapter-Rise-of-the-Prosecutor-Politicians-1.22.pdf.
This is not an area I have spent much time exploring, especially with respect to Founding Era dynamics, but even a little digging and reflection makes Bill's claims seem even less sound as a matter of text or history.
Posted by: Doug B | Apr 19, 2024 7:26:03 PM
Doug --
1. Golly, that ham sandwich indictable at the prosecutor's whim -- the one defense-oriented critics have been talking about forever while bemoaning the prosecutor's near total control of the grand jury -- sure made a fast getaway. Do tell me if you see it!
2. If you don't know that prosecutors and not judges effectively control the decision what and whether to charge, there's not a lot I can do about it, or want to. In fact, however, you do know it; you just don't want to admit it because it would rankle you to think that prosecutors, instead of being sub-human, are actually legitimate actors in the system with their own powers not routinely subject to a (supposedly but not actually) Superior Branch of Government.
3. The real source of your (apparently escalating) antipathy to prosecutors would seem to originate less in what you erroneously take to be their illegitimacy, but simply in the fact that they are an important part of the mechanism by which society imposes punishment, and with rare exceptions, you just don't care for criminals to be punished, something that shows through in huge majority of your comments here for many years. You of course are entitled to that view, and it's widely shared, particularly in Criminals-Are-Wonderful academia, but it still does not displace the Framers' plan of CO-EQUAL, not subordinate, branches.
Posted by: Bill Otis | Apr 19, 2024 10:50:36 PM
Bill, we have never been discussing the "effective" powers of prosecutors to charge; indeed, I stressed the considerable declination powers of prosecutor above (which, I believe, you've complained about in some settings). What you know we have been discussing is whether you have any legal support for your prior claim that "the Constitution makes charging an exclusively executive branch function." It seems clear now that lack support for your claim --- and, indeed, that all sorts of constitutional text and history contradict it --- but I continue to welcome you providing ANY support whatsoever if you have any.
The constitutional text and history does suggest that "ham sandwitch" concerns reflect an academy much more committed to constitutional checks on punitive state power than you seem to be. Absent some constitutional text or cite to support your claims, Bill, it become plain that you are just advocating for your policy preferences and not for constitutional principles.
Posted by: Doug B | Apr 20, 2024 10:00:16 AM
Doug --
"The constitutional text and history does suggest that "ham sandwich" concerns reflect an academy much more committed to constitutional checks on punitive state power than you seem to be."
Did you mean to say "...than the defense bar seems to be," since it's YOUR friends in the Criminals-Are-Wonderful defense bar who've spent decades (at least) complaining about the all-but-limitless power of prosecutors (with which, unlike you, they are at least acquainted in practice) to control the charging decisions of the grand jury.
Have you really missed those complaints? Did you ever say, before now, that these defense lawyers were getting it all wrong? That prosecutors had nothing like that power?
Still, you're in good form. Academics are never wrong! They weren't wrong, for example, in thundering at us not long ago that "constitutional text" meant that Trump had to be removed from the ballot! Of course the Court didn't see it that way (nine-zip) just as the Court doesn't see how the "constitutional text" demands exile for acquitted conduct (also nine-zip against even granting merits review). Those unanimous Justices are such dopes!!!
Posted by: Bill Otis | Apr 20, 2024 7:40:12 PM
Bill, I know you are smart enough to get this: folks who complain about a world of "all-but-limitless power of prosecutors" are, righlty in my view, expressing concern that it is inconsistent with our constitutional structure for any state actor to have "exclusive" punitive powers without any checks and limits. And yet you have claimed "the Constitution makes charging an exclusively executive branch function." Is this still your claim -- even without any constitutional text or history to support it?
That you have not provided any textual or historical support for your claim --- and, indeed, given that all sorts of constitutional text and history contradict it --- demonstrates itself the concerns of those worried about prosecutorial powers: Bill Otis, a prominent former federal prosecutor, not only believes but asserts that "the Constitution makes charging an exclusively executive branch function." And, rather than admit when pressed that constitutional text and history do not support (and actually contradict) this claim, the former prosecutors argues the defense bar is misguided for seeking to vindicate constitutional text and history.
Not sure what is scarier, Bill, your eagerness to champion a "prosecutors uber alles" policy or the fact you do not seem not to care that it lacks any support in constitutional text and history. But I am sure it your apparent indifference to constitutional text and history reinforces why I think it is so important to be a vigilent advocate for the checks and balances the Framers placed in our constitutional system.
Posted by: Doug B | Apr 21, 2024 10:46:50 AM
Doug --
I quoted YOU earlier in this thread as saying, correctly, that "courts cannot initiate charges." I feel safe in assuming that you would not be so unequivocal if you weren't backed up by constitutional text and history.
Since courts can't, and (which with very limited exceptions if any) Congress can't, that leaves only one other branch. End of story.
Well, not quite the end. You talk around, but very conspicuously don't contradict, the ubiquitous defense claim that prosecutors have all but unlimited control of the grand jury. And the reason you don't contradict it is that you know it's true.
But one thing that isn't true is that you merely want "checks and balances" on the prosecution's power to decide what and whether to charge. In fact, you want that power shifted to something else -- anything else, I guess -- that the defense bar can more readily control.
What a great idea! To have criminals, through their zealous representatives, have a bigger say in whether they can be held to account for all the nifty stuff they do!! Do you want Donald Trump's defense team to have a say in what Jack Smith put in his indictments? If so, you haven't said so (up to now).
There's a reason the Constitution creates separate and co-equal branches -- and a reason this fact gives you so much indigestion.
P.S. I doubt I'm all that prominent, but I appreciate the promotion.
Posted by: Bill Otis | Apr 21, 2024 11:55:22 PM
Bill, you keep avoiding this direct question I asked long ago in reaction to YOUR assertion that "the Constitution makes charging an exclusively executive branch function." To repeat:
"Can you confirm or clarify that you agree that, once brought, the federal judiciary has authority --- indeed a constitutional obligation --- to consider the constitutionality and legality of any and all federal charges brought by prosecutors?"
We an get to the end of this story if and when you acknowledge that the text of the Constitution plainly gives Grand Juries a robust discretionary check on executive charging and gives federal judges a robust legal check on executive charging. Will you acknowledge that is how our Constitution structures the application of federal punitive powers at the outset?
I readily acknowledge that many folks, myself included, would like to see grand juries and judges serving as an even more robust check on how prosecutors can use their charging powers. But, as I said before, those sentiments have far more foundation in the text of the Constitution than your policy desire for prosecutors to have "exclusive" power.
After all, if Jack Smith has "exclusive" power to charge, what is the Supreme Court considering in US v. Trump this week? Aren't the Justices considering what kinds of charges he may be legally allowed to pursue? Won't the SCOTUS ruling in this case essentially involve the Justices having "a say in what Jack Smith [was allowed to have] in his indictments." And didn't Jack Smith urge SCOTUS to take this case up ASAP because he fully acknowedged that the judiciary was to have the final say on what he could charge Donald Trump with?
Put another way, has Jack Smith or any amici urged SCOTUS to dismiss Trump's immunity claims because "the Constitution makes charging an exclusively executive branch function"? Is anyone arguing any immunity claim can only be pressed with the executive branch so that it is a non justiciable "exclusively executive branch" matter?
Posted by: Doug B | Apr 22, 2024 9:33:36 AM
