What’s striking is that one year after the violent effort to prevent the certification of the presidential election, some on the right continue to complain about how the process is playing out.
Some of the concerns are sensible but come rather late in the game. For example, many on the right are outraged to discover that Jan. 6 detainees are being held in substandard conditions as they await trial. Good point. Activists have argued for years that the detention facilities in Washington, D.C., are horrific. Yet one searches in vain for earlier objections from conservatives about the thousands of city residents who have for decades been housed in those same dreadful conditions.
Similarly, Republicans have argued that prosecutors are using pre-trial detention as a device to pressure the Jan. 6 arrestees to plead guilty. Maybe so. Welcome to the real world. Pre-trial detention has long been a common tool of prosecutors to coerce guilty pleas, and recent scholarship has confirmed the tool’s effectiveness. Few arrestees want to stay in jail.(1)
But those complaints are in effect epiphenomena to the heart of the matter: the insistence that had the Capitol rioters been leftists, they’d have been treated more leniently.
We can’t test the claim directly because the only people who rioted on Jan. 6 were Trump supporters. But a recent court decision lets us test the claim indirectly — and the test shows why the argument for a double standard is specious.
The case involved David Lee Judd, who faces felony charges for, among other things, allegedly assaulting a federal law enforcement officer. In his defense, Judd has claimed that Capitol arrestees are facing harsher treatment than those arrested after 2020’s violent protests in Portland, Oregon — protests that also featured attacks on law enforcement officers and a government building. Judd sought the disclosure of internal Justice Department documents to prove his claim that he is the victim of selective prosecution. In a decision handed down a week ago, a federal court denied the motion.
The opinion by Judge Trevor N. McFadden is worth a read.
Judd argued that many of those not prosecuted after the Portland riot were alleged to have done the same thing he was — specifically, “to have committed violence against federal officers in circumstances where a large crowd was attempting to breach a federal building.”
Judge McFadden, plainly unhappy with the decision by prosecutors to dismiss most of the charges against the Portland mob, conceded a part of Judd’s argument, ridiculing the federal government’s justifications for non-prosecution as “absurd and untenable.” He added: “Rarely has the Government shown so little interest in vigorously prosecuting those who attack federal officers.”
But McFadden concluded that the patent absurdity of the government’s previous decisions were not, on their own, enough to make out a claim of discriminatory prosecution. Whatever happened in Portland, the attack on the Capitol was sui generis:
“January 6 rioters … endangered hundreds of federal officials in the Capitol complex. Members of Congress cowered under chairs while staffers blockaded themselves in offices, fearing physical attacks from the rioters.”
By laying out the allegations so starkly, the judge reminds us of the horror of that day. To make out a case for selective prosecution, McFadden held, Judd would have to show unequal treatment of others arrested in that specific “unique” circumstance.
If I add that McFadden is a Trump appointee, I do only because I know there are some who consider such matters relevant. I’d suggest that what matters more is the opinion’s iron logic. One needn’t be a law-and-order zealot to understand that the fact that some bad actors may escape punishment cannot ipso facto justify violence by others. The safest way to avoid prosecution for your role in a riot is not to riot.
I’m not suggesting that the left’s response to the events of Jan. 6 deserves no criticism, but that’s a matter for another day. The Capitol rioters are charged with committing acts unique in our recent history. Those on the right who insist that the defendants are being treated unfairly would do better to insist that justice be allowed to take its course.
(1) A related charge is that the courts have rejected most defense requests for pretrial release. Also true, but also not exactly unfamiliar. Besides, the cases are fact-specific, and, certainly, the government hasn’t won every single one.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
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