Barr to prosecutors: Charge rioters *to the max*

Call this committing to the message. In order to start providing real disincentives for lawlessness in riots, the Wall Street Journal reports that Attorney General William Barr told prosecutors to aggressively pursue higher-level charges for violent actors. That has resulted in over 200 cases in the Department of Justice, which sounds … a little light, considering the circumstances.

On the other hand, the DoJ did get off to a late start:

Attorney General William Barr told the nation’s federal prosecutors to be aggressive when charging violent demonstrators with crimes, including potentially prosecuting them for plotting to overthrow the U.S. government, people familiar with the conversation said.

In a conference call with U.S. attorneys across the country last week, Mr. Barr warned that sometimes violent demonstrations across the U.S. could worsen as the November presidential election approaches. He encouraged the prosecutors to seek a number federal charges, including under a rarely used sedition law, even when state charges could apply, the people said.

The call underscores the priority Mr. Barr has given to prosecuting crimes connected to months of protests against racial injustice that have at times become violent and led to major property damage, as President Trump has made a broader crackdown on violence accompanying the demonstrations a key campaign issue. U.S. attorneys have broad discretion in what charges they bring.

Federal prosecutors have charged more than 200 people with violent crimes related to the protests, most of whom face counts of arson, assaulting federal officers, or gun crimes. FBI officials earlier this year described the perpetrators as largely opportunistic individuals taking advantage of the protests. In more recent months, police officials say they are alarmed by the presence of armed fringe groups from both sides of the political spectrum.

Earlier this year, it might have looked opportunistic. By July, however, the Department of Homeland Security’s intelligence operations made it clear that the violence in the riots was organized and not opportunistic. The report from now-whistleblower DHS undersecretary Brian Murphy made it clear who was doing the organizing as well:

That was almost two months ago. If Barr waited until last week to urge prosecutors to get aggressive on charging decisions, that might actually demonstrate a large amount of forbearance. As John just posted an hour ago, the destruction from this summer’s rioting is already north of $2 billion, and likely to cost a lot more in lost economic output.

One reason for stepping up the aggression in charging decisions is that local prosecutors have all but forfeited on the rule of law. In Portland, for instance, prosecutors publicly refused to charge rioters, which led other law-enforcement agencies to refuse to assist Portland police in restoring order. Other jurisdictions have made their reluctance to press charges less explicit, but their inaction has still sent the same message of impunity. The DoJ’s effort is an attempt to restore some sense of the rule of law.

Of course, federal prosecution means much stiffer penalties, which also helps amplify the disincentives. Earlier today, Buzzfeed decried the fact that two attorneys who tried to torch a police vehicle in New York might end up getting a life sentence for their crime:

The NYPD van on a Brooklyn street was banged up and empty, a battered steel shell with shattered windows and a mask of spray paint. Shortly before 1 a.m. on Saturday, May 30, the fourth straight night of nationwide protests against police brutality, a Molotov cocktail set it ablaze.

A surveillance camera perched outside the NYPD’s 88th Precinct down the block captured the incident, including a tan Town & Country minivan at the scene. Around 10 minutes later, officers pulled over a vehicle fitting that description. Colinford Mattis, 32, was at the wheel, and Urooj Rahman, 31, was in the passenger seat. Officers found a lighter, a tank of gasoline, and a bottle stuffed with toilet paper in the backseat. Rahman and Mattis were handcuffed and transported into holding cells at NYPD headquarters, two of 23 people arrested in Brooklyn that night for actions connected to the protests against police brutality. …

By June 4, federal prosecutors had pursued charges against 51 people linked to the protests. In the weeks that followed, US Park Police cleared protesters in Washington, DC, with tear gas, and Border Patrol agents detained demonstrators in Portland, Oregon, by shoving them into unmarked cars. President Donald Trump issued an executive order stating that the Department of Justice would prosecute “to the fullest extent permitted” anyone who vandalizes public monuments, claiming this was necessary because of “local public officials’ abdication of their law enforcement responsibilities.”

When it came to Rahman and Mattis and the alleged crime of burning an empty and already damaged police vehicle, the US attorney’s office brought charges so severe they carry a mandatory minimum sentence of 45 years in prison and a maximum of life — a potential punishment one former federal prosecutor called “ridiculous,” another called “out of hand,” and a third described as an “extreme” tactic to “send a message” to other protesters.

If the penalties are “ridiculous,” then Congress can revisit the statutes. If Mattis and Rahman don’t want to face 45 to life in prison, then they shouldn’t have been tossing Molotov cocktails at police vehicles, whether or not they were occupied at the time. The purpose of these statutes is to keep people from committing violent acts, and one value of prosecution and long prison sentences is pour encourager les âutres. If those charges don’t apply in their case, their attorneys can make that case in federal court, but I’d guess they’d be better off cutting a plea deal at this point, given that they got caught red-handed.

That’s not to say that overcharging isn’t an issue, especially by federal prosecutors. It can be, although few people seemed to be bothered by it when it came to Paul Manafort or the parents that took part in the academic fraud busted by Operation Varsity Blues. None of those defendants were violent, either, nor did they aim their violence at legitimate legal authorities like police, courthouses, and so on. These violent rioters have been fueled by a sense of impunity granted by local prosecutors who sympathize with their political goals. A few tough prosecutions will end that sense of impunity, and perhaps with it much of the enthusiasm for violence and destruction.

Finally, Barr understands something else that Buzzfeed doesn’t. The longer that impunity lasts, the more it will spread — and the more that people will start taking violent action against the rioters. The rule of law is the only way to keep the peace long term. Caveat riotor, as it were.