If so, the embarrassment will result only because the media and some prosecutors wildly inflated expectations. As violent and disturbing as the Capitol Hill riot was, only a small minority of the rioters took parts in specific, prosecutable assaults. The rest, Politico reports today, likely will get charged with misdemeanors … and never see the inside of a prison:
Americans outraged by the storming of Capitol Hill are in for a jarring reality check: Many of those who invaded the halls of Congress on Jan. 6 are likely to get little or no jail time. …
In recent days, judges, prosecutors and defense attorneys have all indicated that they expect few of these “MAGA tourists” to face harsh sentences.
There are two main reasons: Although prosecutors have loaded up their charging documents with language about the existential threat of the insurrection to the republic, the actions of many of the individual rioters often boiled down to trespassing. And judges have wrestled with how aggressively to lump those cases in with those of the more sinister suspects.
That’s not to say that there won’t be some defendants facing serious prison time. Thanks to video, some of which got published by the participants themselves, investigators have identified individuals who took part in assaults on police officers and can charge them with felonies. Thanks to extensive social-media postings, they have also identified organizers of violence. The Oath Keepers and Proud Boys contingent were a small minority of those who charged the Capitol, however. Most of the people who entered the building presumably just took advantage of the situation. That doesn’t alleviate their legal liability, but it also doesn’t make them part of a grand insurrection conspiracy — as prosecutors and administration officials claimed publicly.
That’s the problem that the White House will now face, Politico’s legal analysts Josh Gerstein and Kyle Cheney write. They fumbled the expectations game, choosing the immediate benefit of stoking outrage over the long-term credibility issues that failure to deliver will bring:
The prospect of dozens of Jan. 6 rioters cutting deals for minor sentences could be hard to explain for the Biden administration, which has characterized the Capitol Hill mob as a uniquely dangerous threat. … Justice Department prosecutors sent expectations sky-high in early statements and court filings, describing elaborate plots to murder lawmakers — descriptions prosecutors have tempered as new details emerged.
That’s not the only PR problem the Biden administration and its DoJ has created for itself. They also may get hoist by their own equity petard:
The resolution of the more mundane cases also presents acute questions about equity, since most of the Capitol riot defendants are white, while misdemeanor charges are often a vexing problem for minority defendants in other cases.
These are the reasons why the DoJ rarely discussed cases in public before filing charges, at least before the Hillary Clinton investigations. For the past six years or so, prosecutors and higher-ups have played politics with these investigations, and their credibility has suffered as a result. It might have been impossible to refrain from all commentary on an event as existential to the institutions of republican democracy as the assault on Congress, but the DoJ and the administration had a duty to refrain from hyperbole about it … and it might have been a safer political choice, too.
Just how embarrassing will this prove, though? Even if most of those charged only end up with misdemeanors and no jail time, convicting a few organizers on the more serious charges will likely make up for it. If prosecutors win convictions on felonies for conspiracy and violent actions against the ringleaders, that will still get the Biden administration enough cover to declare victory. Beware of the hyperbole in both directions.