Prosecutors Face Daunting Challenge in Wake of Capitol Riot

Jan. 6 Capitol rioters / Getty Images
• January 16, 2021 5:00 am


Federal authorities are contending with daunting tasks as they build criminal cases against rioters who attacked the Capitol on Jan. 6.

Top federal prosecutors are scrambling to coordinate searches or arrests with dozens of law-enforcement entities across the nation, process a colossal sum of digital evidence, and precisely trace the activities of hundreds of potential defendants. They're doing so in an uncertain security situation, with thousands of National Guardsmen deployed to protect President-elect Joe Biden's inauguration.

Prosecuting rioters is hard by nature, since the chaos mobs unleash makes it difficult to establish facts and assign blame. Many wrongdoers will ultimately escape criminal charges: Washington, D.C., prosecutors have brought fewer than 300 criminal cases related to unrest in the capital over the summer. The scale of the evidence from the Capitol riot and the mammoth federal investigatory effort underline those challenges and the unique threat riots pose for the rule of law.

Zachary Smith, a Heritage Foundation legal fellow who served as a federal prosecutor in Florida, said one immediate challenge is an organizational one. Many of the rioters, he noted, were only visiting Washington and have since returned to their homes. That means investigators need to enlist support from law-enforcement agencies all around the country as they pursue leads and make arrests. Once charges are entered, those entities will also help officials in Washington keep an eye on defendants to prevent further unrest.

"This will involve coordination between most of the U.S. attorneys' offices and FBI field offices across the country," Smith told the Washington Free Beacon. "Most of the time when information is needed, or there's a search warrant, that's going to have to be run through the local U.S. attorney's office wherever the suspect or information is located."

For example, Richard "Bigo" Barnett was an early target for authorities because images of him lounging in Speaker Nancy Pelosi's office had circulated across social media. After the riot, Barnett made a quick retreat to his home in northwest Arkansas, where he was taken into custody by local sheriffs on Jan. 8. A Justice Department prosecutor in west Arkansas will handle Barnett's case, and his initial appearances have been before a federal trial court in Fayetteville.

Another problem is the quantity of information prosecutors must review. Investigators are scrambling to compile, sort, and examine thousands of pieces of digital evidence, such as pictures, videos, and cell phone tracking information. Authorities will examine each item individually, then cross-reference it with witness statements and other data. Hundreds of agents and prosecutors are needed to complete those tasks.

"The biggest issue that the FBI, DOJ, and other investigating agencies are facing is the sheer volume of evidence that they're going through," Smith said. "It's really a time-intensive, manpower-intensive process to sort through all of it."

Digital evidence will help authorities identify rioters and track their activities. But in many instances, it won't be enough to sustain a criminal case. Smith pointed to the now-famous images of a rioter parading the speaker's lectern through the Capitol as the sort of evidence on which the government can comfortably rest a case. Bringing a case on the basis of cell phone location information or a grainy video is a closer call. And connecting a particular defendant with a particular crime in a setting as chaotic as a riot is harder still.

"A prosecutor has to be able to prove whatever charges they bring in court beyond a reasonable doubt," Smith told the Free Beacon. "That's the highest burden we know in American law. So it's really important that they have all their T's crossed and their I's dotted."

Such challenges undermined over 100 cases federal prosecutors brought against Inauguration Day rioters in 2017. As President Donald Trump took office, protesters in downtown Washington charged police lines, hurled rocks at officers, set cars on fire, and shattered storefronts. Over 200 black-clad demonstrators were arrested and charged with riot-related offenses.

The U.S. attorney for the District of Columbia divided the defendants into subsets and tried them in small groups. The first six defendants stood trial on five felony charges late in 2017. Prosecutors said from the start they couldn't prove the defendants committed specific acts of violence. But the defendants should still be convicted, they argued, because their very presence helped wrongdoers move freely and elude police.

A jury rejected that theory and acquitted the defendants of all counts, prompting prosecutors to drop charges against 129 others.

Seventy-one people have been charged with crimes related to the Capitol riot as of Thursday, according to a database maintained by George Washington University's Program on Extremism. Forty-four of those cases are in federal court, while 27 are in Washington, D.C. Superior Court.