Judges have also pressured defendants to explain why they were in the building that day and express contrition, even if their plea agreements do not require such admissions.
The friction comes from the minor role each individual played in the day’s overall horror. More than 570 people have been charged in what the Justice Department has called the largest investigation in U.S. history.
Chief U.S. District Judge Beryl Howell has suggested more people should face the felony charge of obstructing the official certification of Joe Biden’s electoral victory.
“Does the government . . . have any concern about deterrence?” Howell asked in one hearing after questioning whether prosecutors were truly unable to prove that a man who entered a broken window and bragged that he “stormed the Capitol” committed a more serious crime than what the government charged.
Many of the participants, conversely, have insisted even while pleading guilty that their actions had no connection to the political rage that left five people dead and was followed by the suicides of multiple police officers who responded to the attack.
Thus far, the palpable frustration has not translated into longer sentences; no misdemeanor defendant has been given more than time already served. But most are still awaiting sentencing, and defendants who go to trial will face longer potential punishments. Several plea agreements have nearly fallen apart under scrutiny from judges.
“They seem to feel like there is a level of severity here that the government sometimes hasn’t accounted for in their charging decisions,” said Greg Hunter, a defense attorney involved in several Capitol riot cases.
The Justice Department declined to comment for this report.
Prosecutors have allowed misdemeanor defendants to plead to one of four charges applied to those who went into the Capitol but did not engage in violence or destruction. Thus far, nearly all have chosen “parading, demonstrating or picketing inside the Capitol building,” a “petty offense” that carries a punishment of at most six months in jail and a fine of up to $5,000. The crime also does not require defendants to admit they trespassed or attempted to block the peaceful transition of power.
Hundreds have been accused of obstructing an official proceeding, a felony charge punishable by up to 20 years in prison. But another federal judge has warned that the Justice Department needs to better explain its rationale for using that charge.
Judges have stepped in, trying to force defendants to explain their actions.
“Was your purpose in entering the Capitol building . . . to protest against Congress certifying the electoral college vote?” Howell asked one defendant last week.
After a long pause, Leonard Gruppo replied that he was “there to support the president.”
Howell pressed, “Your purpose was not to be a tourist walking through the Capitol, was it?” A Republican congressman from Georgia has said that footage of rioters inside the Capitol on Jan. 6 resembled “a normal tourist visit.”
Gruppo replied, “No, ma’am.”
She did not accept his plea until he agreed that he was in the building “as part of a demonstration in support of President Trump.”
In another hearing, she called the charge a “puzzle” because “demonstrating is typically about something.”
Prosecutors have said the people offered these deals are getting credit for admitting guilt quickly and agreeing to cooperate with the government in the sprawling investigation.
But judges have also expressed concern that those prosecutors don’t always know the extent of a person’s actions in the chaos of Jan. 6. Last week, a man was nearly sentenced on a misdemeanor, only for prosecutors to say they had just seen evidence he assaulted police.
Judge Thomas Hogan said he knew “the government was trying” but questioned why new video was only found that day by online sleuths.
“We have to make sure we have everything we need to have,” he cautioned.
At a different misdemeanor plea hearing Monday, Assistant U.S. Attorney Michael Liebman made a point of saying new charges could be brought if evidence emerged that the defendant, a New Jersey woman with ties to the anti-government Three Percenter movement, had engaged in violence.
One recent plea to the same charge was nearly derailed when Boyd Camper of Montana refused to sign a document that said he “knew that he did not have permission to enter the building.”
Judge Colleen Kollar-Kotelly was incredulous, asking his lawyer, “Despite that he sees people pushing police down and the barricades down?”
A week later, Camper did plead guilty, admitting that he told law enforcement he saw those overwhelmed defenses and “picked the right hole” to get into the building unencumbered. But he still refused to say that he understood at the time that what he was doing was against the law.
Remorse and responsibility are explored in more depth at sentencing hearings, which usually take place several months after a plea. Some judges have dropped the issue of culpability, saying they will take it up again down the road.
“It may not be necessary” today, Judge Amy Berman Jackson told one defendant who struggled to explain why he was inside the Capitol, “but may be important at the time of your sentence.”
She also said it was “worrying” that, because of the petty charge, she could not impose a sentence that includes both incarceration and supervised release — saying that might be “the most appropriate way to address a lot of the behavior here.”
Only a few riot participants have completed the sentencing process. At the first misdemeanor sentencing, an Indiana woman expressed acute regret for her actions, saying that while she did not personally commit violence she now realized she had contributed to a “savage display” that was “disgraceful to our country.”
Yet a few days later, the same woman told Fox News that “where I was at . . . people were very polite,” and that she only walked in to help an elderly demonstrator.
Noting that interview, at a subsequent plea hearing Hogan questioned whether prosecutors were “getting true acceptance of responsibility.”