Several dozen people have been charged with federal crimes related to the attack on the US Capitol.
People are questioning whether federal law enforcement are being softer on Capitol rioters than they were on those who attended anti-racism protests last summer.
Experts say it might be too early to tell, but said prosecutors should add conspiracy or other enhancement charges soon to increase potential prison time.
Last summer, tens of thousands of Americans took to the streets to demand an end to police violence and racist systems. These demonstrations were largely peaceful, and the intense response from law enforcement was often disproportionate. Police made hundreds of arrests that resulted in some unprecedented charges.
The Department of Justice prosecuted more than 300 people on crimes linked to behavior at anti-racism protests and riots over the summer, and many of those defendants eventually faced enhancement crimes to ensure that their cases remained in the federal purview. Some face charges that come with a max penalty of life in prison.
But arrests of those involved in the January 6 insurrection did not come as swiftly. The pro-Trump rioters were met with palpably little force when they breached the Capitol, damaged and stole government property, and assaulted law enforcement officers.
Over the following days, the FBI and other agencies started taking some of the individuals known to have participated in the breach into custody. A week later, just over 100 people who were at or around the Capitol had been arrested.
But now that the DC rioters are starting to face charges, many people are naturally wondering if the DOJ will be as heavy-handed with them as they were with those involved in the anti-racism demonstrations.
Experts say that it might be too soon to tell if the prosecutions will be equitable, but that the world is watching.
Conspiracy charges and sentence enhancers could be coming and increase the amount of potential prison time
Michael Loadenthal, a professor at Georgetown University, is the executive director of the Prosecution Project, a research platform tracking criminal cases involving political violence in the US.
He and a team of at least 30 researchers have been collecting data on arrests and prosecutions of individuals accused of political violence at demonstrations from both the George Floyd protests around the US and the Capitol riot as they become available.
Right away, Loadenthal could see a difference in how arrests were handled between the two movements.
People arrested at George Floyd protests were largely taken in right away, while most of the Capitol rioters were allowed to leave before federal officials started rounding them up over the next week.
But as for how the cases are being prosecuted, not enough time has passed to determine for sure whether the Department of Justice has been too soft on the pro-Trump insurrectionists, Loadenthal said.
Often, charges that people face upon arrest are far different from what they face as their case goes to trial.
There are a few early differences in charging that Loadenthal will keep an eye on as the cases progress.
In the summer demonstrations, for example, the US Attorney's office (USAO) charged defendants with a slew of violations that would ensure behavior that could be prosecuted on a state level would be bumped to federal prosecution, he said.
They did this by using enhancement crimes, like interstate commerce violations.
At least 76 people in summer demonstrations were accused of violating "interstate commerce" statutes, which typically refer to charges of drug or weapons trafficking, kidnapping, or making threats against government bodies.
Arson alone could be prosecuted in state court, but arson that interferes with interstate commerce is a federal crime.
"There is the case in New York where the Molotov cocktail he threw was made from a Patrol bottle and the USAO argued that Patron is manufactured outside the US so it's an interstate crime," Loadenthal said. "There is the case from Manhattan, of the torching of an NYPD vehicle, in which the USAO claimed that was an interstate crime because the car was manufactured in Canada."
"There's a number of these cases that are kind of ridiculous, where this notion of interstate is being used to justified the case being prosecuted federally as opposed to in state court," he added.
Loadenthal said we're not seeing that same kind of eagerness from the federal government to maintain control over cases coming from the Capitol breach.
"It seemed in the Floyd cases there was a lot of attempt being made by the USAO, and by function the Department of Justice, to keep these cases federal," he said. "It does seem like in the Capitol cases, we don't see that as much."
As of Thursday morning, the criminal cases involving Capitol rioters were almost equally split between federal court and DC superior court.
While there is still time for the DOJ to pull cases from the state court to US District Court, where sentencing is often more severe, Loadenthal said it is happening at a slower rate than it did over the summer.
It could be, Loadenthal said, because the sheer volume of the Capitol cases, which are expected to grow by at least 150 more in the coming weeks. Floyd demonstration cases are still on the docket in District Courts across the US, so bringing in such a massive new caseload may not be in the cards.
"For whatever reason, the USAO, the Department of Justice, seems fine with the Superior Court of DC prosecuting a lot of these cases," he said. "That might just be practical; they might just be realists. They might realize they can't prosecute 300 cases simultaneously."
Another difference is the kind of charges that Black Lives Matter demonstrators faced vs. those at the Capitol.
As of Thursday, those arrested on federal charges in DC faced an average of two charges related to unlawfully entering or staying in the Capitol, Loadenthal said.
There were some notable outliers, of course, such as the Alabama man arrested with 11 Molotov cocktails in his truck; he's already been indicated by a Grand Jury on more than a dozen far more serious crimes.
But for the most part, most of the Capitol rioters who have been arrested face a small number of very similar charges, including "knowingly entering or remaining in any restricted building or grounds without lawful authority" and "violent entry and disorderly conduct on Capitol grounds."
On their own, these crimes come with pretty low potential sentences.
Richard Barnett, the known White Supremacist from Arkansas, for example, was charged with knowingly entering or remaining in any restricted building or grounds without lawful authority; violent entry and disorderly conduct on Capitol grounds; and theft of public money, property or records.
Despite being photographed with his feet up on House Speaker Nancy Pelosi's desk, these initial crimes only come with a potential sentence of up to a year in prison.
If prosecutors decide to charge anyone with conspiracy, that could increase the sentences, Loadenthal said.
"I would have expected most people charged with unlawful entry, but then a lot of other things, like conspiracy. We don't see that either," he said. "If someone's arrested with possession of incendiary device for a politically motivated crime, I also expect to see conspiracy to possess and incendiary device. That seemed to be the prosecutorial method in Floyd."
Even before the George Floyd demonstrations and related unrest, the US government has tended to use conspiracy as an add-on crime during political violence.
Outside of his work on the Prosecution Project database, Loadenthal is a published researcher who studies political violence and the government crackdown on environmental activists and anarchists.
He was also among the more than 200 people who were arrested over their alleged involvement in the J20 anti-fascism rally at President Donald Trump's inauguration in 2017.
"If we look at J20, prosecutors argued that people engaged in on-the-fly conspiracy to commit crimes, so if the USAO doesn't claim that here, that's wildly asymmetrical," he said.
"If you have some guy breaking in a window of the Capitol with a riot shield, and another guy putting his knee down to help him through the window, and a third guy acting as a lookout, that is the textbook definition of conspiracy," he added.
Loadenthal said he doesn't believe that just because the charges haven't been filed yet doesn't mean they aren't coming. It takes time for the government to build cases on defendants, and when it comes to conspiracy cases, that will involve wading through a lot of data likely subpoenaed from Facebook, Twitter, Paler, and other tech companies.
In J20, for example, demonstrators were initially arrested on only one charge: felony rioting.
Two months later they faced another eight charges, and by the last superseding indictment that April there were 13 felony charges.
When prosecutors got a look at the defendants' social media posts, their potential sentences went up significantly.
Ultimately, if convicted, the J20 demonstrators could have faced life in prison. The defendants were either found not guilty or their cases were dropped.
"Once they pull these [Capitol riot] networks apart, they're going to find there is conspiracy. They're going to find that there's a lot of coordination," Loadenthal said.
"My expectation is that they're being charged as placeholders right now and that these multi-jurisdictional investigations are going to occur, and they're going to build actual dossiers on these people, as opposed to what they could have assembled in the last five days," he added.
Experts say Capitol crimes will be easier to prosecute
In the week since the Capitol riot, some progressive activists are already pointing out some apparent differences in how the government is prosecuting the largely white pro-Trump crowd compared to the younger and far more culturally diverse group of people protesting racial injustice last summer.
And while there are the early discrepancies in charges noted by Loadenthal, he also believes that the crimes at the Capitol were so serious and the evidence is so widely available, that it might not even require the DOJ to be as aggressive with their charges right out of the gate.
"It seems like they're taking more of a, for lack of a better term, conservative view of what to charge people with. The interpretive counter-side to that is that they don't need to overcharge here," Loadenthal said.
"People breached a federal government building. People were killed. Police were beaten to death, it was like 50 officers were injured," he said. "It seemingly lacks the need for that rhetorical punch."
Prosecuting those arrested at the Capitol, which was among the most widely documented crimes in US history, won't be as difficult as cases involving demonstrations on public streets - like the anti-racism protests over the summer.
Criminal defense attorney Joel Hirschhorn, from Florida-based law firm GrayRobinson, also believes that it's premature to compare the prosecutions of those arrested during the two political movements.
Hirschhorn has been representing clients charged in political unrest dating back to the 1960s.
He had clients who rallied in opposition to the the Chicago Democratic Convention in 1968. In 1972, he represented individuals picked up protesting at the Republican National Convention in Miami. He also had clients from the Jewish Defense League who disrupted US-Russian cultural events.
Many of those cases were acquitted because the crimes they faced were easily defended by First Amendment protections.
Hirschhorn said that while Black Lives Matter defendants last summer may have faced charges that were initially severe at the time of arrest, some are following a similar prosecutorial trajectory as other political demonstrations throughout history.
A lot of cases have already been knocked down to misdemeanor charges once prosecutors reviewed them, he said, and many cases will likely be diverted to pre-trial diversion programs in lieu of criminal prosecution.
"I think the key here is that the police reaction in the field and an arrest is one thing. On the other hand, when it goes through the process of review in an antiseptic environment, the charges usually get lowered," he said.
"I don't think that's going to be the case with these [Capitol] prosecutions because, for one thing, the federal government is extremely stingy with pre-trial diversion," he added. "Two, you had an assault on people, but not just regular people, people who run this government."
That isn't to say, though, that researchers shouldn't stay vigilant on monitoring how the the cases of both anti-racism and Capitol siege defendants move through the courts, because the US governement has a history of prosecuting people of color more severely than others charged with the same behavior, Hirschhorn said.
In 1985, for example, Hirschhorn participated in a lawsuit on behalf of Haitian refugees in a case against the US government.
These refugees had risked their lives in "leaky boats and rubber rafts" to travel to the US from Haiti to escape a violent regime. As soon as they got to the US, they were arrested.
"At the same time, when Cubans traveled the 90-100 miles to the US, once they hit land, they were immediately paroled and released to family members or churches," he said. "There was this distinctly different treatment of the Haitians whose journeys were far longer and they were seeking to escape Baby Doc, and the treatment of Cubans who were seeking to escape Fidel Castro."
Hirschhorn said he noted the discrepancy to the court, and to Attorney Rudy Giuliani, who was representing the US government at the time. Giuliani "lost it" over the allegations of racism, he said, but the lawsuit was ultimately successful.
"That's a long answer to Black Lives Matter and what's going on today in Washington, DC," Hirschhorn said. "Black people are treated differently - charged with more serious crimes for less serious conduct."
"This insurrection, fueled by incredibly arrogant and dumb rhetoric by the president and Rudy Giuliani and others, is deserving of the harshest possible treatment," he added.
Loadenthal and his team are continuing to track the charges pursued against Capitol rioters, specifically keeping an eye on whether prosecutors start alleging conspiracy.
Speaking personally, and not as a representative of the Prosecution Project, Loadenthal said it wouldn't surprise him if insurrectionists were dealt a better hand than leftist demonstrators.
"Everything by the left is portrayed as conspiracy, and it seems like this is an actual conspiracy where people actually planned; where people came in formation; where people brought barricading equipment; people brought equipment to detain people," Loadenthal said. "It seems like an actual conspiracy, an actual coordinated effort. So if it's not charged as that, that I think will be very illuminating."
"Under this Department of Justice," he said, "I expect some degree of disparity."
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