Two months into one of the biggest criminal investigations in U.S. history, prosecutors are preparing to start plea discussions as early as this week with many of the more than 300 suspects charged in the U.S. Capitol riot — even as investigators race to piece together larger conspiracy cases against those suspected of the most serious crimes, according to people familiar with the discussions.
The planned plea talks follow efforts by the U.S. Attorney’s Office for the District of Columbia, which is overseeing the prosecutions, to first create a system for efficiently organizing what they expect will be upward of 400 criminal cases and the growing pile of associated evidence, these people said. Like others, they spoke on the condition of anonymity to discuss an ongoing investigation.
“We hope to start extending plea offers within the next week or so,” said one person familiar with the investigation.
FBI agents and prosecutors are rushing to understand the actions and intentions of not just individuals, but also extremist groups such as the Proud Boys and Oath Keepers, and exactly how a mob of roughly 800 people broke into the Capitol on Jan. 6 — a process that has drawn complaints from some defendants who argue their cases are being delayed to accommodate the Justice Department’s heavy workload.
“The way to think about this is that they are approaching it the same way they would approach organized-crime cases,” said Peter Skinner, a former federal prosecutor in New York who has managed large conspiracy cases. “The key difference is, organized-crime cases are typically investigated under wraps, with wiretaps, but in this case, the FBI has to work backward.”
The blistering pace of the FBI’s work was highlighted in an indictment unsealed late last week against alleged Proud Boys organizers, saying the four men charged and others not yet named scrambled to arrange new communications channels in the days before the riot, apparently out of concern that police could review their previous messages to one another.
And on Sunday, the former interim U.S. attorney for D.C., Michael R. Sherwin, reiterated his belief that charges of seditious conspiracy could be brought against some defendants. Seditious conspiracy is a rarely applied criminal charge used against those who use violence to hinder the execution of federal law.
“I personally believe the evidence is trending toward that, and probably meets those elements,” Sherwin said in a “60 Minutes” interview on CBS News two days after he stepped down from supervising the investigation. “I believe the facts do support those charges. And I think that, as we go forward, more facts will support that.”
Investigators already see important gradations of guilt within the pro-Trump mob, but until recently they have been wary of offering plea deals to anyone for apparently limited criminal conduct in case authorities later find more evidence against that person, the people familiar with the matter said. A police officer and four others died as a result of the riot, and officials say nearly 140 officers were assaulted.
One defense lawyer, speaking on the condition of anonymity to discuss legal strategy surrounding the insurrection investigation, said prosecutors have wanted “to make sure what class or group of folks are going to get misdemeanor plea offers, felonies, felonies with substantial [prison] time, and where people fall.”
While plea discussions have begun in a smattering of cases, prosecutors have worked to create a more formal negotiation process for many of the less serious cases, people familiar with the matter said.
For example, some attorneys have characterized certain low-level defendants as “MAGA tourists” — people with no previous criminal records who are charged only with misdemeanor trespassing in the Capitol. (MAGA is short for Make America Great Again, former president Donald Trump’s campaign slogan.) They are not suspected of having committed or encouraged other crimes, these people said. Such individuals, assuming more incriminating evidence does not come to light, may have a chance at deferred plea agreements, a diversion program akin to pretrial probation in which prosecutors agree to drop charges if a defendant commits no offenses over a certain period.
Doing so, however, requires sifting through hours of chaotic and sometimes unclear Capitol surveillance video, officer-worn camera footage, social media posts, electronic communications and cellphone location data.
Prosecutors have wrestled with how to categorize defendants accused of more extensive criminal conduct and what sentences they should receive. That includes how to treat defendants charged with felonies, including distinguishing among defendants charged with assaulting police officers and others who impeded or hindered them. Justice Department officials want to ensure that defendants whose conduct is similar receive similar charges and potential sentences, without lumping disparate cases together.
Legal fights over access to evidence could delay the resolution of some cases. Prosecutors have sought sweeping gag orders limiting defendants’ lawyers from sharing government evidence. By law, prosecutors must turn over evidence potentially helpful to the defense, as well as information they plan to use at trial, a process known as discovery.
Prosecutors are seeking tight controls on such evidence because so many of the riot videos, social media posts and digital evidence about one defendant may implicate others, whether charged or uncharged, and because so much of the investigation remains ongoing.
Some defense lawyers have objected to such restrictions, arguing it is impractical to require defendants to view sensitive evidence only in the presence of their attorneys. While many defense lawyers are in Washington, their clients are scattered around the country, and the pandemic makes travel more difficult.
Federal prosecutors and the public defender’s office in D.C. have spent weeks hammering out a comprehensive plan to identify, track and review evidence and continue negotiating a system to store, organize, search, produce and share such information relevant to each defendant.
In one case, prosecutors recently turned over to a single defendant 835 phone and Facebook photos and video files, a 12,038-page extraction from the suspect’s phone, and 2,600 pages of Facebook records.
Prosecutors have proposed turning over in the next 30 to 60 days evidence most directly related to about 55 defendants who remain in jail, to be followed later by evidentiary disclosures to about 250 other defendants on a rolling basis. Officials have signaled that an additional 100 people may still face charges in connection with the riot.
Plea deals now would present many defendants with the potentially difficult choice of admitting guilt before seeing all the government’s evidence against other offenders and the full circumstances of events at a given time and place around the Capitol.
Attorneys for several defendants have said their clients were waved into the building by police officers, entered through open doors or were otherwise unaware of wrongdoing, in contrast with others’ more egregious behavior.
On the other hand, many defendants have said they want to put their actions on Jan. 6 behind them. Some federal judges have also pushed prosecutors and defendants to be ready to declare whether they expect cases to plead out or go to trial within the next 30 to 60 days.
Plea offers typically are not open ended but expire after a limited time. However, negotiations held now could become an opening round for talks over the months or years to come as courts slowed by the pandemic strain to complete the heavy workload of prospective trials.
Because of the investigation’s complexity, pandemic restrictions on holding trials and expectations that prosecutors will be more comfortable with making more-generous offers after processing more evidence, most lawyers for Jan. 6 defendants have consented to delays in pretrial deadlines, particularly for those defendants who were not ordered to stay in jail while they await trial.
Some defense lawyers, though, have balked at such delays, noting that prosecutors have raced to charge cases immediately, rather than wait for the end of the investigation.
“Two months after it brought forth the initial prosecutions in this case, the government has yet to determine how it can deliver discovery, has yet to provide a reasonable position about protective orders and, in many cases, has not even provided police paperwork,” Assistant Federal Defender Eugene Ohm wrote on behalf of defendant Jason Gerding, an Illinois man charged with unlawful entry, violent entry and disorderly conduct on Capitol grounds. Gerding has pleaded not guilty and was released on bond. “The government chose to prosecute Mr. Gerding in January when it had no plan to prosecute the case within the restrictions of its discovery obligations. In turn the government can simply dismiss this case and bring forth an indictment when it is actually ready to prosecute.”
Defense attorneys for individuals in jail awaiting trial also have objected.
Attorneys for Graydon Young, a Florida man accused of conspiring with members of the self-styled militia group the Oath Keepers to attack the Capitol, argued he is presumed innocent and has a right to a speedy trial that recognizes “pretrial detention and a lengthy period of delay leading up to trial only magnifies the stress, uncertainty, and psychological pressure and damage” to a defendant.
“Paired with the already expected excludable delays in this case due to the number of co-defendants and the covid-19 pandemic, Mr. Young’s defense is expected to also be prejudiced due to dimming memories and the loss of exculpatory evidence,” they argued.