Federal Judges Have Shown Leniency in Nearly All Jan. 6 Cases

Federal judges handling the criminal cases of hundreds of people charged in connection with the January 6, 2021, insurrection at the U.S. Capitol have overwhelmingly issued sentences far more lenient than Justice Department prosecutors sought, an analysis by The Intercept reveals.

In 82 percent of the 719 January 6-related cases that have been resolved, and in which the defendants have either pleaded guilty or been convicted, judges have issued lighter sentences than federal prosecutors requested, the analysis of Justice Department data through December 4, 2023, shows. They imposed the same sentences sought by prosecutors in just 95 cases and harsher sentences in only 37.

Illustration: Daniel Zender for The Intercept

Nearly every one of the 24 federal judges handling the massive docket of January 6 cases has shown leniency toward the defendants, regardless of whether the judges were appointed by Democratic or Republican presidents, the data shows. Perhaps the most surprising finding is that the judges appointed by President Joe Biden have been slightly more lenient than those appointed by former President Donald Trump. Biden appointees issued lighter sentences than prosecutors sought for January 6 defendants in 24 of the 26 cases they handled, or 92 percent, effectively tying with George W. Bush appointees as the most lenient. Judges appointed by Trump, meanwhile, have issued more lenient sentences in 90 percent of their cases.

Trump and his allies have repeatedly claimed that the federal judicial system has been unnecessarily punitive in its treatment of January 6 defendants, complaining that they are political prisoners" who have been unfairly persecuted for trying to prevent the congressional certification of Biden's 2020 election. One leading January 6 defendant compared himself to a Jew living in Nazi Germany and said that his only crime is opposing those who are destroying our country."

Illustration: Daniel Zender for The Intercept

The Intercept's analysis sharply contradicts that right-wing narrative. In many cases, judges have rejected prosecutors' requests for prison time, often reducing defendants' sentences to home detention or probation. Defendants have been sentenced to standard prison terms in only 429 out of 719 cases, or 60 percent. Another 31 defendants were sentenced to intermittent incarceration, meaning they only had to serve time on nights or weekends. Home detention was given instead of prison in 101 cases, while defendants in 135 cases got probation.

There is no evidence that the judges in these cases are handing out sentences that are excessive," said Richard Painter, a law professor at the University of Minnesota and former chief White House ethics lawyer in the Bush administration. I think this shows that the system is working."

The Intercept's analysis is the most comprehensive examination so far of how federal judges appointed by Republican and Democratic presidents ruled in January 6 cases that have reached a final resolution in the U.S. District Court for the District of Columbia, which is handling all the criminal cases stemming from the insurrection. Hundreds more cases are still in progress and will likely be assigned to the same group of judges. A total of 1,233individuals have so far been charged in connection with the January 6 mob, according to a running tally compiled by the Associated Press.

The January 6 defendants have been charged with a wide range of crimes, including low-level violations like disorderly conduct and unlawful entry that would be forgettable if they were not committed with the aim of derailing the peaceful transfer of power. But the charges also include far more serious offenses, such as assaulting law enforcement officers and members of the media; theft; entering restricted areas with deadly weapons; disrupting Congress; and seditious conspiracy. About 140 police officers were assaulted as they tried to protect the Capitol and members of Congress, according to the Justice Department.

Graphic: The Intercept/Getty Images

Judges have issued more lenient sentences than prosecutors recommended across the board. The Justice Department is now appealing some of them.

This dispels the idea that [the January 6 defendants] are victims," said William Banks, a law professor at Syracuse University, when The Intercept told him about the analysis.

Lisa Klem, a spokesperson for the U.S. District Court in Washington, D.C., declined to comment on the statistics.

The pro-Trump revisionist history surrounding the January 6 defendants is part of a larger effort to downplay the significance of the insurrection while perpetuating the lie that the 2020 election was stolen. The campaign to anoint the January 6 defendants as martyrs began soon after the uprising at the Capitol and quickly gained momentum. The following year, a former defendant sat in a phony jail cell in what amounted to a performance art installation created for attendees of the Conservative Political Action Conference, and last spring, a group of January 6 defendants singing The Star-Spangled Banner" over a prison phone line became a hit on iTunes. Many January 6 defendants have sought to cash in on their fame and have raised millions of dollars from right-wing supporters, particularly through the Christian fundraising site GiveSendGo. Prosecutors have asked judges to impose fines to counter the flood of donations.

The right-wing support for January 6 defendants has continued even as many have apologized in court for their actions and blamed Trump for lying about the election results and inciting them to storm the Capitol. One recent study by Citizens for Responsibility and Ethics in Washington found that 174 January 6 defendants have said they believed they were doing Trump's bidding.

Lawyers for Peter Schwartz, who threw a chair at police officers and attacked them with pepper spray, told the court that he was only following Trump's directions. There remain many grifters out there who remain free to continue propagating the great lie' that Trump won the election, Donald Trump being the most prominent," they wrote in an April 2023 court filing. Mr. Schwartz is not one of these individuals; he knows he was wrong."

Trump and the MAGA right have ignored these statements of remorse and continue to treat the defendants as heroic figures. At a campaign event in Texas in November, the Republican front-runner described incarcerated January 6 offenders as hostages, not prisoners." Last June, Trump attended a fundraiser for January 6 defendants, calling them great people" who have been made to pay a price."

J. Michael Luttig, a former judge on the U.S. Court of Appeals for the 4th Circuit, said that the pro-Trump attacks on the judicial process in the January 6 cases are deeply damaging to the nation. The American people, as well as the courts, must understand that the former president will continue these disgraceful, condemnable attacks on our institutions of law and democracy until he has succeeded in delegitimizing them in the eyes of a sufficient number of Americans that not only will they not accept the justice system's verdicts against him, but they will return him to The White House in 2024 preciselybecauseof those verdicts."

Graphic: The Intercept/Getty Images

Federal sentencing guidelines establish a range for each crime, but the Supreme Court ruled in 2005 that sentencing guidelines are not mandatory. Federal judges must consider the guidelines, but they are not required to follow them. Prosecutors usually make recommendations in criminal cases, often reflecting the guidelines, while defense attorneys tend to propose lower sentences. But judges can ignore both recommendations.

The judges handling the January 6 cases have taken advantage of the leeway they are granted under the law to largely ignore prosecutors' sentencing recommendations. Luttig, who was appointed to the federal bench by President George H.W. Bush, said he always had confidence that judges handling the January 6 cases were not persecuting the defendants as Trump and his supporters had alleged, and were instead following normal and consistent sentencing patterns. He said he was not surprised by the fact that the judges appear to have sentenced this group of defendants to lesser terms of imprisonment than was generally recommended by the prosecutors," nor that the party affiliation of the president appointing the judges" was not a variable" in their sentencing patterns.

This is as it should be," Luttig said.

Obama appointees have handled the most January 6 cases, and they, too, have issued more lenient sentences than prosecutors sought in the vast majority. They have presided over 337 cases that have been resolved and have issued more lenient sentences than prosecutors sought in 281 of them, or just over 83 percent.

Judge Tanya Chutkan - who is presiding over Trump's own federal trial on charges stemming from his efforts to overturn the 2020 election, and who Trump and his supporters have accused of being out to get the former president - has actually been lenient in many of the other January 6 cases she has handled. She has issued sentences lighter than prosecutors sought in almost exactly half - 19 out of 39 - of her January 6 cases. Those statistics contradict a media narrative promoted by the MAGA right that Chutkan, an Obama appointee, has meted out unusually harsh sentences in cases related to the Capitol riot and that she may be exceptionally tough on Trump as well.

Judges appointed by Trump have issued lesser sentences than prosecutors wanted at only a slightly higher rate than Obama appointees. Out of 173 cases, Trump appointees gave lighter sentences than the government requested in 156. Trump appointees agreed to the sentences recommended by prosecutors in 16 cases, while issuing a harsher sentence in one.

By contrast, judges appointed by President Bill Clinton have meted out the harshest sentences, yet they have still been more lenient than prosecutors recommended slightly more than half the time. George W. Bush appointed judges have issued lesser sentences than prosecutors sought in 50 out of 54 cases, or 92 percent, while judges appointed by Ronald Reagan issued more lenient sentences in 42 out of 68 cases, or 61 percent.

Illustration: Daniel Zender for The Intercept

Judges handling the January 6 cases have been relatively lenient even when sentencing the most prominent defendants charged with the most serious crimes. Some leaders of militant groups were convicted of seditious conspiracy - plotting to use force to keep Trump in power - and received long sentences, but those penalties were still significantly lighter than what prosecutors had recommended.

Stewart Rhodes, the leader of the Oath Keepers, was convicted of seditious conspiracy and sentenced to 18 years in prison by Judge Amit Mehta, an Obama appointee. That struck many as a long sentence for the 58-year-old graduate of Yale Law School, but it was seven years less than prosecutors recommended for a man the government says was one of the insurrection's key leaders. Mehta imposed the lesser sentence despite finding that Rhodes's actions constituted terrorism, which calls for longer sentences under federal guidelines. The Justice Department has appealed the sentence, along with those of other Oath Keepers who received much lighter sentences than prosecutors recommended.

When it came time to mete out punishment for Kelly Meggs, the leader of the Oath Keepers Florida chapter who joined other members of the group to march up the steps of the U.S. Capitol in a stack" formation to storm the building, Mehta issued a sentence of 188 months in prison; prosecutors had sought a 252-month sentence. Prosecutors asked that Oath Keepers member Roberto Minuta - a tattoo shop owner in Newburgh, New York, who was also convicted of seditious conspiracy - serve 204 months in prison, but Mehta sentenced him to just 54 months. On his way to Washington, Minuta filmed a video of himself warning that millions will die" in a looming civil war; just before the Capitol riot began, he and Meggs were part of a security detail for Trump adviser Roger Stone.

Enrique Tarrio, the Proud Boys leader convicted of seditious conspiracy, was sentenced to 22 years in prison by Judge Timothy Kelly, a Trump appointee. Tarrio's is the longest sentence given to any January 6 defendant so far, but it was still much shorter than the 33 years that prosecutors had recommended. The Justice Department has indicated that it plans to appeal the sentences of Tarrio and four other Proud Boys.

Jacob Chansley stormed the U.S. Capitol shirtless, covered in face paint, and wearing a horned headdress. He became known as the QAnon Shaman" and got all the way up to the Senate rostrum, where he wrote a threatening note to Vice President Mike Pence, who was due to preside over the congressional certification of the presidential vote. It's only a matter of time," the note read. Justice is coming!"

Prosecutors described Chansley as the public face of the Capitol riot" and asked that he be sentenced to 51 months in prison after he was convicted in 2021 of obstructing an official proceeding. Senior Judge Royce Lamberth, a Reagan appointee, sentenced him to 41 months, but Chansley was released after just 27 months. In July, Lamberth dismissed an effort by Chansley to get his conviction overturned, noting that new information obtained by prosecutors showed that Chansley may have been aware that a gallows had been erected outside the Capitol when he wrote his threatening note to Pence - evidence that Lamberth said might have convinced him to issue a longer sentence.

Chansley is now gearing up to run for Congress, the institution he helped invade on January 6. As he launches his bid for a House seat in Arizona's 8^th District, the 36-year-old says he may rebrand himself as America's shaman." Just before Christmas, Chansley attended a conference of Turning Point USA, a major conservative group, in Phoenix and had his photo taken with Rep. Marjorie Taylor Greene, the right-wing House member from Georgia. Chansley wore the same costume he'd had on at the Capitol; Greene said she was honored to meet him.

The most lenient individual judge handling January 6 cases was not appointed by Trump or Biden, but by George W. Bush. Judge John Bates, now on senior" or semi-retired status, issued sentences more lenient than prosecutors sought in all 28 of the January 6 cases he handled, often turning down requests for prison time and letting defendants walk free.

Take the case of Abram Markofski, an active member of the Wisconsin National Guard when he stormed the Capitol. After Markofski agreed to plead guilty to one of four charges against him - parading, demonstrating, or picketing in a Capitol building - prosecutors asked for him to spend 14 days in jail; Bates gave him two years' probation instead. Prosecutors sought a sentence of 30 days in jail for Thomas Fee, a retired New York firefighter who pleaded guilty to a parading charge that carried a sentence of up to six months in prison, but again Bates sentenced him to probation. Prosecutors sought seven months in jail for right-wing Florida pastor James Cusick; nine months for his son Casey Cusick; and seven months for David Lesperance, a member of Cusick's congregation. Bates reduced their sentences to just 10 days each.

Bates has shown leniency toward even the most violent January 6 defendants on his docket. He sentenced Joseph Padilla, a former corrections officer from Tennessee who threw a flagpole that hit a police officer in the head, to 78 months in prison, less than half the 171-month sentence sought by prosecutors. Bates gave Padilla the lower sentence even after describing him as one of the most aggressive rioters" on January 6.

The judge was fair, I have to admit," Padilla's wife wrote in September on GiveSendGo, the Christian fundraising website.

Bates was also lenient in the wild case of Nathan Pelham. The same day Pelham agreed to surrender on charges related to the Capitol riot, the Texas man was arrested for shooting a gun in the direction of law enforcement officers. The shooting happened in April, after an FBI agent called Pelham to inform him of the January 6 charges. Later that day, when a local sheriff's deputy was sent to his home for a welfare check, Pelham fired in the deputy's direction. Prosecutors wanted Pelham to spend six months in prison for his role in the insurrection, but Bates sentenced Pelham to just a $500 fine in the January 6 case. Separately, Pelham pleaded guilty to a charge of illegal possession of a firearm in connection with the shooting and was sentenced to two years in prison.

One Obama appointee has been nearly as lenient as Bates. Judge James Boasberg, the chief judge of the District Court in Washington, D.C., has issued sentences more lenient than prosecutors sought in 34 of the 37 cases he has handled.

William Cotton of Rhode Island was a low-level member of the mob that breached the U.S. Capitol, and he quickly cut a plea deal with the government. But prosecutors contended that he should still spend some time in jail because they said he showed no remorse for his actions. Cotton does not view this case or his participation in the Jan. 6 riot as serious," prosecutors wrote in a sentencing memo. Put differently, Cotton does not take this case seriously because he does not expect this Court to take it seriously." It appears that Cotton was right; while prosecutors sought a 21-day prison sentence, Boasberg gave him probation instead.

Boasberg also issued a lighter sentence than prosecutors sought in the case of a defendant involved in one of the riot's most violent incidents. On January 6, Jonathan Munafo of Albany, New York, stole a police officer's shield and repeatedly punched him, causing the officer's head to snap back," prosecutors wrote in a statement. The government sought 37 months in prison, but Boasberg reduced the sentence to 33 months, despite the fact that Munafo had been arrested in another election-related case for making death threats to a Michigan 911 dispatcher in a series of deranged calls on January 5, 2021. Munafo, who reportedly spent much of 2020 following Trump around to campaign events, was separately sentenced to 24 months in prison on charges related to the death threats.

Kevin Seefried, second from left, holds a Confederate battle flag as he and other insurrectionists loyal to President Donald Trump are confronted by U.S. Capitol Police officers outside the Senate chamber inside the Capitol in Washington, D.C., on Jan. 6, 2021.
Photo: Manuel Balce Ceneta/AP

Judge Trevor McFadden, a Trump appointee, has also been extraordinarily lenient, issuing lighter sentences than prosecutors sought in 48 of the 50 January 6 cases he has handled, including cases involving some of the day's most infamous incidents. Kevin Seefried of Delaware was photographed carrying a Confederate flag through the Capitol building, an image that went viral and captured the extremist, racist aspect of January 6. Seefried also confronted U.S. Capitol Police officer Eugene Goodman, a Black man, and threatened him with the flagpole. Seefried, the first rioter to encounter Goodman, cursed at the officer and chased him up a flight of stairs in a scene famously captured on video. Goodman testified that Seefried told him, You can shoot me, man, but we're coming in." The flagpole with a Confederate flag on it, prosecutors noted, was brandished by a man standing at the front of a volatile, growing mob towards a solitary, Black police officer."

Goodman said that Seefried jabbed the flagpole in his direction several times while demanding to know where are the members at, where are they counting votes?" Prosecutors recommended 70 months in prison for Seefried, but McFadden sentenced him to 36 months.

In the case of Geoffrey Sills, a Virginia man who stole a baton from a police officer and beat him with it, prosecutors sought 108 months in prison, but McFadden determined that he should only serve 52 months.

Chutkan, the judge handling Trump's federal trial, has also issued more lenient sentences than prosecutors sought in cases involving January 6 defendants convicted of violent crimes. Matthew Capsel of Ottawa, Illinois, fought National Guard soldiers protecting the Capitol, charging a line of troops and ramming into their shields. Capsel - who filmed himself fighting the soldiers on TikTok and whose Facebook profile name was Mateo Q Capsel," suggesting he was an adherent of QAnon conspiracy theories - only stopped fighting after he was pepper-sprayed, prosecutors wrote in a statement. Capsel kept posting about January 6 afterward, writing that on the 6^th good men had to do a bad thing."

Capsel was charged with civil disorder and reached a plea deal with prosecutors, who recommended that he be sentenced to 31 months in prison. But Chutkan reduced that to 18 months, well below the 27 to 33-month sentencing guideline range for his offense, according to prosecutors, and not much more than the sentence proposed by Capsel's defense lawyers.

Perhaps the toughest January 6 judge has only presided over a small handful of cases and thus has not had much impact on the overall figures. Judge Emmet Sullivan, a Clinton appointee now on senior status, has handled nine cases and issued sentences harsher than prosecutors sought in five, the same as prosecutors sought in two others, and more lenient sentences in only two.

During the sentencing hearing in the cases of John Getsinger Jr. and Stacie Hargis-Getsinger, a married couple from South Carolina who joined the mob storming the Capitol, John sought to influence Sullivan by expressing regret and acknowledging that we brought this on ourselves."

Sullivan wasn't buying it. Although prosecutors recommended just 45 days in jail for each, Sullivan gave them 60 days apiece.

Graphic: The Intercept/Getty Images

Some January 6 defendants may soon find their sentences reduced or completely thrown out thanks to the U.S. Supreme Court. The court agreed in December to consider an appeal of one of the charges brought by the government in a large number of January 6 cases: obstruction of an official proceeding. A lower court judge ruled that federal prosecutors inappropriately used the law against January 6 defendants. That ruling was overturned by an appeals court, and now the Supreme Court has agreed to take up the case.

Obstruction of an official proceeding is the sole charge in 24 out of the 719 January 6 cases in which defendants have been convicted and sentenced, according to the Intercept's analysis; in many other cases, it is one of several offenses of which defendants were found guilty. If the Supreme Court determines that the obstruction law was misused, the defendants who have only been convicted of obstruction could presumably have their records cleared.

As the cases of hundreds of January 6 defendants continue to work their way through the legal system, Trump's own trial on charges stemming from January 6 and his efforts to overturn the election is looming in the same federal courthouse, an imposing white stone building on Constitution Avenue just a few blocks from the Capitol. Trump is facing a charge of obstructing an official proceeding, along with other charges, so a Supreme Court verdict could affect him as well.

But while Trump has repeatedly spoken out in support of the January 6 defendants, he's trying to block special counsel Jack Smith from even mentioning the Capitol mob during his trial, which is scheduled to begin in March. In a recent court filing, Smith made clear that he plans to highlight the insurrection as the culmination of Trump's illegal post-election efforts to remain in power. But Trump is now trying to distance himself from it. His lawyer has argued that any mention of the Capitol riot is not relevant" to Trump's case and would be prejudicial and inflammatory."

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