Are the January 6th convictions justice?
The criminal investigation undertaken by the federal government against hundreds of participants in the Jan. 6 storming of the U.S. Capitol is polarizing the country and shredding civil liberties.
There is little that unites me with those who occupied the Capitol building on Jan. 6. Their vision for America, Christian nationalism, white supremacy, blind support for Trump and embrace of reactionary fact-free conspiracy theories leaves a very wide chasm between their beliefs and mine. But that does not mean I support the judicial lynching against many of those who participated in the Jan. 6 events, a lynching that is mandating years in pretrial detention and prison for misdemeanors. Once rights become privileges, none of us are safe.
The U.S. legal system has a very sordid history. It was used to enforce segregation and legitimize the reign of terror against Black people. It was the hammer that broke the back of militant union movements. It persecuted radicals and reformers in the name of anti-communism. After 9/11, it relentlessly went after Muslim leaders and activists with Special Administrative Measures (SAMs). SAMs, established by the Clinton administration, originally only applied to people who ordered murders from prison or were convicted of mass murder, but are now used to isolate all manner of detainees before and during trial. They severely restrict a prisoner’s communication with the outside world; prohibiting calls, letters and visits with anyone except attorneys and sharply limit contact with family members. The solitary confinement-like conditions associated with SAMs undermine any meaningful right to a fair trial according to analysis by groups like the Center for Constitutional Rights and can amount to tortureaccording to the United Nations. Julian Assange faces SAMs or similar conditions should he be extradited to the U.S. The Classified Information Procedures Act, or CIPA, begun under the Reagan administration, also allows evidence in a trial to be classified and withheld from defendants. The courts, throughout American history, have abjectly served the interests of big business and the billionaire class. The current Supreme Court is one of the most retrograde in decades, rolling back legal protections for vulnerable groups and denying workers protection from predatory corporate abuse.
At least 1,003 people have been arrested and charged so far for participation in events on Jan. 6, with 476 pleading guilty, in what has been the largest single criminal investigation in U.S. history, according to analysis by Business Insider. The charges and sentences vary, with many receiving misdemeanor sentences such as fines, probation, a few months in prison or a combination of the three. Of the 394 federal defendants who have had their cases adjudicated and sentenced as of Feb. 6, approximately 220 "have been sentenced to periods of incarceration" with a further 100 defendants "sentenced to a period of home detention, including approximately 15 who also were sentenced to a period of incarceration," according to the U.S. Attorney's Office in Washington, D.C. There are six convictions and four guilty pleas on charges of "seditious conspiracy." This offense is so widely defined that it includes conspiring to levy war against the government on the one hand and delaying the execution of any law on the other. Those charged and convicted of "seditious conspiracy" were accused of collaborating to oppose "the lawful transfer of presidential power by force" by preventing or delaying the Certification of the Electoral College vote. While a few of the organizers of the Jan. 6 protest such as Stewart Rhodes, who founded Oath Keepers, may conceivably be guilty of sedition, and even this is in doubt, the vast majority of those caught up in the incursion of the Capitol did not commit serious crimes, engage in violence or know what they would do in Washington other than protest the election results.
Joseph D. McBride went to law school because his brother was serving a 15-year sentence for a crime he did not commit. He provided free legal advice as a law school student to those encamped in Zuccotti Park in New York City during the Occupy movement. Following law school, he worked as a public defender and in the Legal Aid Society. He represents several of those charged in the Jan. 6 incursion, including Richard Barnett. Barnett was photographed in Nancy Pelosi's office with his leg propped up on her desk. Barnett was convicted by a federal jury, which deliberated for two hours, on eight counts, including disorderly conduct in the Capitol building. He faces up to 47 years in prison. He is scheduled to be sentenced on May 3.
"The post 9/11 model is being applied to American citizens," McBride told me when I reached him by phone. "That model is the 19 hijackers. Everyone who is a religious Muslim is a suspect for the next 20 years. They should be waterboarded. They should be put in f*cking jail and left in Guantanamo Bay. Lock them up. Throw away the key. Because they are psychopath extremists who believe in Allah and we don't have time for that. They're a threat based on who they are, what they look like, what they believe in. When the truth is, the vast majority of these guys don't do drugs, don't drink alcohol, they have five kids and they live pretty good lives. But because of the label of 'terrorism' and 'Osama Bin Laden' and 'al-Qaeda', everybody who is a Muslim is now a target. If we get on a plane next to one of these people, we get nervous about it because that's how much it's ingrained in us. The same thing is happening, except it's being applied to a new group of people, primarily white Christians, Trump supporters, for now."
"Power is going to change hands," he warned. "The Democrats are not going to be in power forever. When power changes hands, that precedent is going to travel with it. If somebody else from the other side gets in and starts to target the people who are in power now, their families, their businesses, their lives, their freedom, then it's over. America goes from being a free democracy to a tribalist partisan state. Maybe there's not ethnic-cleansing in the streets, but people are cleansing each other from the workplace, from social media, from the banking system and they'e putting people in jail. That's where we’re headed. I don't know why people can’t see what's on the horizon."
The Jan. 6 protestors were not the first to occupy Congressional offices, including Nancy Pelosi's office. Young environmental activists from the Sunrise Movement, anti-war activists from Code Pink and even congressional staffers have engaged in numerous occupations of congressional offices and interruptedcongressional hearings. What will happen to groups such as Code Pink if they occupy congressional offices with Republicans in control of the White House, the Congress and the courts? Will they be held for years in pretrial detention? Will they be given lengthy prison terms based on dubious interpretations of the law? Will they be considered domestic terrorists? Will protests and civil disobedience become impossible?
McBride said those who walked to the Capitol were not aware that the Department of Justice had created arbitrary markers, what McBride called an "imaginary red line that they draw around the Capitol grounds." Anyone who crossed that invisible line was charged with violating Capitol grounds.
He railed against the negative portrayal of the protestors in the media, the White House and Democratic Party leadership, as well as a tainted jury pool in Washington composed of people who have close links to the federal government. He said Change of Venue motions filed by the defense lawyers have been denied.
"The D.C. jury pool is poisoned beyond repair," McBride said. "When you just look at what the January 6 Committee did alone, never mind President Biden's speeches about 'insurrectionists,' 'MAGA Republican extremists' and all this stuff, and if you just consider the fact that D.C. is very small, that people who work in the Federal Government are all by definition, kind of victims of January 6 and what happened that day, their institutions and colleagues were 'under attack.' How can anybody from that town serve on a jury pool? They can't. The bias is astounding."
Jacob Chansley, the so-called "QAnon shaman" who was adorned on Jan. 6 in red, white and blue face paint, carried an American flag on a spear-tipped pole and wore a coyote-fur and horned headdress, pleaded guilty to obstruction. He was sentenced to more than three years in prison. Chansley, who says he is a practitioner of ahimsa, an ancient Indian principle of non-violence toward all living beings, was not accused of assaulting anyone. He was diagnosed in prison with transient schizophrenia, bipolar disorder, depression and anxiety.
Guy Wesley Reffitt, who did not enter the Capitol building, nevertheless was sentenced after three hours of deliberations to seven years and three months in prison on five charges, including "two counts of civil disorder, and one count each of obstruction of an official proceeding, entering and remaining in a restricted building or grounds with a firearm, and obstruction of justice." His obstruction of justice charge came from "threatening" his two teenage children to prevent them from reporting him to law enforcement.
Daniel Ray Caldwell, a Marine Corps veteran, who sprayed a chemical irritant at a group of police officers outside the Capitol and entered through the Senate Wing doors where he remained inside for approximately two minutes, was sentenced to more than five years in prison. He spent, like many who have been charged, nearly two years in pretrial detention.
Even the charges against Rhodes, who faces 20 years in prison, and other militia leaders of groups such as the Proud Boys are problematic. The New York Times reported that, "despite the vast amount of evidence the government collected in the case — including more than 500,000 encrypted text messages — investigators never found a smoking gun that conclusively showed the Proud Boys plotted to help President Donald J. Trump remain in office." The government has relied on the testimony of a former Proud Boy, Jeremy Bertino, who is cooperating with prosecutors to build an "inferential case" against Enrique Tarrio, Ethan Nordean, Joseph Biggs, Zachary Rehl and Dominic Pezzola, the five defendants in the current Proud Boy case. Bertino, on cross-examination, admitted that in previous interviews with the government, he repeatedly told investigators that the Proud Boys did not have an explicit plan to halt the election certification and that he did not anticipate acts of violence on Jan. 6. The FBI had as many as eight informants in the Proud Boys that included its leader, Enrique Tarrio, during the storming of the Capitol, raising the very real possibility of entrapment.
"They're changing the laws," McBride said. "Look at the 1512 charge, the obstruction charge. That was used for document shredding in Enron. It has no applicability to Jan. 6 whatsoever. They took it. They repurposed it. They weaponized it against these people and made it impossible for them to defend themselves. When you look at the civil disorder charge, they are saying that if January 6 was one big civil disorder, and if you had any type of interaction with a police officer that day that may or may not have caused the police officer to step away from his duties for a moment, you can go down with civil disorder and get five years in jail."
Ryan Nichols, a Marine Corps veteran, is living under house arrest in Texas after nearly two years in pretrial detention, much of it in solitary confinement, in Washington, D.C and Virginia jails. He faces five felony and three misdemeanor charges. Prosecutors say Nichols assaulted officers and obstructed an official proceeding. He has been ordered to "stay away from Washington, D.C." except for business related to his case, according to court documents. He has had to submit to "location monitoring technology" and is denied access to the internet and his phone except to perform functions related to his case. He cannot have contact with anyone involved in the Jan. 6 events, including co-defendants. Nichols must remain in his home 24 hours a day except for medical and court appointments. He is permitted to attend Sunday church services at Mobberly Baptist Church in Longview, Texas. He is facing 20 years in prison. He is scheduled to go to trial on March 27.
I spoke with Bonnie Nichols, Ryan's wife, by phone from their home in Longview, Texas.
Ryan was arrested on Jan. 18, 2020. The FBI surrounded their house at 5:30 am in armored vehicles. They unscrewed the bulbs from floodlights and cut the wires to the couple's security cameras before kicking in the front door. The couple and their two children, then aged 4 and 6, were at Bonnie's parents house during the raid. The FBI confiscated their weapons, electronics and documents, including Social Security cards.
"We wanted to cooperate," she said. "We didn't know anything was wrong. They asked Ryan to come in for questioning. Ryan went and turned himself in. They arrested him and I didn't see him again for over a year and a half."
Ryan, who had no criminal record, ran a nonprofit called Rescue the Universe where he carried out search-and-rescue operations after natural disasters. He was denied bail. He was sent to a holding facility in Grady County Oklahoma for two months before being flown to Washington, D.C. where he was met by some two dozen U.S. Marshals. His feet were shackled. His arms were shackled to a chain around his waist. He was placed in long-term solitary confinement and denied video calls or visitation from his family, including his children. He was denied access to his trial documents for nearly a year and prohibited from attending religious services in the jail.
Ryan, whose most serious offense appears to be incendiary rhetoric calling for a "second American revolution," spent nearly 22 months in solitary confinement. Depressed, struggling to cope with the physical and psychological strain of prolonged isolation, he was eventually placed on suicide watch. He was strapped to a bench in a room where a light was never turned off. Guards would periodically shout through a window "Do you feel like killing yourself?" Those on suicide watch who said "yes" remained strapped to the bench. Those who said "no" were sent back to their cells. Ryan was often prohibited from having nail clippers — the guards told him he could chew his toenails down — or getting a haircut unless he agreed to be vaccinated for COVID-19. When Ryan appeared before Judge Thomas Hogan, who finally released him on Nov. 23, 2022, he told Ryan, with his long unkempt hair and fingernails, that he looked like Tom Hanks in the film Cast Away.
Every night, for the two years Ryan was held in solitary confinement, Bonnie and her two small boys would say prayers that Ryan would one day come home. She said she and her family have received numerous death threats.
"Ryan deals with insomnia," Bonnie said of her husband. "He deals with extreme anxiety, depression and paranoia. He will not even go outside of his backyard because he's scared that if he goes outside, that they're going to take him back to jail. He has liver issues from the food that he ate because they fed him baloney sandwiches and trash while he was in D.C. He's having a lot of medical issues. He also has lower testosterone than a 60-year-old man because he wasn't able to have any sunlight. His vitamin D levels are low. The list goes on and on. This man does not sleep at night. He has nightmares. He whimpers at night in his sleep because he has dreams that he's back in D.C. I mean, he's a mess. This is the result of what has happened to him. He has vision loss. He doesn't see as good as he used to.”
Ryan's family, like many families of those charged, are struggling financially. Bonnie said their savings are gone. She and Ryan are heavily in debt. She has set up a fundraising page here.
"We are God-loving patriots," she said. "Who's going to be next? It's not about Republican or Democrat or white or Black, Christian, or Muslim. We are all children of God. We are all U.S. American citizens. We are all entitled to our constitutional rights and freedom of speech. We can all come together and agree on that, right?"
The cheerleading, or at best indifference, by Democratic Party supporters and much of the left to these show trials will come back to haunt them. We are exacerbating the growing tribalism and political antagonisms that will increasingly express themselves through violence. We are complicit, once again, of using the courts to carry out vendettas. We are corroding democratic institutions. We are hardening the ideology and rage of the far-right. We are turning those being hounded to prison into political prisoners and martyrs. We are moving ever closer towards tyranny.
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