An estimated 800 people stormed the Capitol building on January 6 in a violent insurrection aimed at overturning the results of the presidential election. Five people, including one Capitol Police officer, died. Many more were injured. On the day of the putsch, we all witnessed the privilege and restraint that law enforcement extends to white criminals. A few officers have already been placed on leave for appearing to encourage the mob. A single white insurrectionist was shot; had the mob been predominantly Black, we all know the cops would have released tanks, drones, and a barrage of bullets.
Now, we’re seeing that same racist permissiveness from the Department of Justice and the FBI. Riley June Williams, the white woman accused of stealing Nancy Pelosi’s laptop during the insurrection, was released last week to the custody of her mother, pending trial. Eric Munchel, the “zip tie guy” who showed up to the Capitol ready to take Congress members hostage, was released on bond after his buddy paid his bail. But Emanuel Jackson, pretty much the only Black face anybody has seen breaching the Capitol, will be held in prison until trial.
Every single person who breached the Capitol that day committed a crime. Every single person who breached the Capitol is, presumably, on video, captured by security cameras, committing that crime. At a minimum, every single person who breached the Capitol must be arrested, charged, and held accountable for that crime—just as they would be if they were Black.
But the vast majority of those 800 criminals were white, which means the vast majority are walking around free, at least for now. Reports indicate that only around 125 people have been arrested so far. Most of them have been charged with relatively minor offenses. A maddening report from The Washington Post suggests that there is internal division among some in the Justice Department about whether authorities should even bring cases against all 800 insurrectionists. For some reason, people at Justice are leaking to the press that they’re worried that bringing cases against these people would “overwhelm” the courts.
That’s an absurd claim. Every criminal court in a major metropolitan area in this country is “overwhelmed” with cases, and that was true even before Covid-19, when judges could go to work safely. Every family court in this country is overwhelmed. Every immigration court in this country is overwhelmed. Black and brown people sit in jails all across the country waiting for their cases to be heard. But we’re supposed to believe “the system” is too busy to hold accountable 800 or so white insurrectionists? What, are we worried the FBI is going to run out of organic meals to feed these people too?
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Refusing to prosecute the insurrectionists is straight-up racist. There is no wiggle room here. We can get into the weeds over whether the provocations of Donald Trump, Donald Trump Jr., Mo Brooks, and Rudolph Giuliani on the day of the insurrection were enough to charge them with crimes. We can debate the appropriate punishment for Josh Hawley, Ted Cruz, and other Republicans who supported the Big Lie that provided motivation for this attack on the government. But prosecuting the 800-odd people who charged the Capitol is nonnegotiable. It must happen. Either these people, all of them, are prosecuted, or this government is openly permissive of white violence.
I still have some hope this government will do the right thing, because “this” government, the Biden government, is only just beginning to take over. The charges, or lack thereof, we see now are the result of the previous administration’s permissiveness of white violence, which led to the attack on the Capitol in the first place.
Consider: We could already have rounded up all 800 of these people and charged them with criminal trespass and disorderly conduct. That could have happened. The fact that it hasn’t is something that FBI Director Christopher Wray should have to answer for, likely in front of a Congressional Oversight Committee hearing, soon. Biden has decided to keep Wray at his post. I believe that’s a mistake, because Wray failed to seriously investigate the attempted rape allegations against his Yale Law School classmate Brett Kavanaugh. His failure to round up insurrectionists on the day of their attempted coup only compounds the feeling that Wray is the wrong man for this job. But I can appreciate that firing the FBI director at the start of every new presidential administration is not really the way things are supposed to work.
Meanwhile, the current acting attorney general is a man named Monty Wilkinson. He’s a career Justice Department civil servant whom I know almost nothing about, and what I do know—that he seems to have turned a blind eye to Trump’s illegal family separation policy—I don’t like. The current acting US Attorney for Washington, D.C., is a man named Michael Sherwin. He’s only been on the job since May and supported former Attorney General Bill Barr’s decision to try to make things easy for Michael Flynn. It would be foolish to place much hope in them.
But there is still some hope for Biden’s appointees. As of now, no hearing has been scheduled for Biden’s choice for attorney general, Merrick Garland. As of now, we don’t know whom Biden and Garland will elevate to be the permanent, Senate-confirmed US Attorney for the District of Columbia. Biden does not have his prosecutors in place, so we really don’t know how hard his administration will try to prosecute the insurrectionists.
I’m not normally a patient man, but I’m willing to wait to give the Biden administration time to put the right people in place to do what needs to be done.
Biden needs the right people in place to do this work, because the right laws are already in place. It’s important to not get this twisted. Some people in the law enforcement community are already arguing that the reason for the lax punishment of Capitol insurrectionists is that we don’t have a law criminalizing “domestic terrorism.” It’s true that we don’t have one. But it’s also true that we don’t need one.
Remember how the government failed after 9/11. Remember how law enforcement used the Patriot Act almost immediately for surveillance and harassment of people who were not terrorists but happened to be brown-skinned. Who were Muslim. We don’t need yet another draconian statutory regime to prosecute the people who stormed the Capitol. We just need to apply the laws we already have against white people, for a change. To do that, we need prosecutors committed to justice, not new laws that will be used by President Tom Cotton, or whatever Trump-lite person the Republicans elect next, to put Black people in jail the moment they get an opportunity.
We don’t need new terrorism laws that prosecutors might someday abuse—we need prosecutors who will use criminal conspiracy charges against the people who attacked us. That is what I’m waiting for Biden’s Justice Department to do.
The legal definition of “conspiracy” is simply two or more people agreeing to take an illegal action. If the agreement can be shown, then any “overt act” in furtherance of the conspiracy puts the responsibility for the crime on all parties to the agreement.
This might come as a galloping shock to some people, but overthrowing the government is indeed already a crime. Kidnapping people or taking hostages is already a crime. Assassinating or attempting to assassinate elected officials is already a crime. If it can be proven that any of these people agreed to do such things, then everybody associated with those actions, even if they ultimately failed to capture or assassinate their targets, can be hit with a criminal conspiracy charge that carries massive penalties. But using these conspiracy laws appropriately, instead of abusively, requires a deep investigation to make sure that prosecutors are indicting the right people with the most serious charges.
Sherwin’s office has already charged three members of the Oath Keepers with conspiracy charges. I doubt that those are the only people who could face this kind of legal jeopardy. In fact, one of the prime reasons the FBI should round up all 800 people who breached the Capitol and charge them with something is that some of them might cooperate and tell authorities additional details about if and how the insurrection was planned.
The other charge I’m waiting for are the felony murder charges. A cop was killed. We’ve been told that authorities are investigating that crime as a murder. But the felony murder rule allows the state to charge people who aided in the commission of a crime that led to a murder. Felony murder is a harsh rule that can be used to lock people up for a long time for essentially committing the wrong crime at the wrong time. Law enforcement uses it all the time against people of color. Either the government uses it now, against a white mob, or we need to get rid of felony murder altogether and release scores of Black and brown people currently in jail because of this very rule.
There cannot be two systems of justice: one for people of color, like the man charged and convicted of felony murder after the Benghazi attacks even though he was only the lookout, and another for a mob of white insurrectionists who stormed the Capitol and killed a cop.
Developing legal cases like this takes time. We should want investigators to take their time. There are degrees of culpability, and the lawyers and investigators should move carefully to sort out the most dangerous criminals from the rest.
But they’re all criminals. They should all be arrested and charged with something. There’s no such thing as “innocently” breaching the Capitol to stop the installation of the duly elected president. This isn’t The Simpsons; there is no “boys will be boys” ruling that is acceptable for this moment.
If confirmed, Merrick Garland will be judged on this. The entire Biden administration and its commitment to equal justice under the law will be judged on this.
Biden promised to do better, and I have hope that he and his people will. I have hope that Biden will appoint prosecutors who believe that prosecuting white people is part of their job, not figuring out excuses to let white people get away with violence. If there are 800 people who breached the Capitol, it’s not too much to ask for an Excel spreadsheet to be delivered to my inbox detailing the accountability faced by each and every one of those 800 people, by sometime next year.
None of these people can be allowed to escape justice. I hope that Biden knows that.
