DOJ could struggle with insurrection prosecutions as cases move towards trial

For lack of a better description, this is a federal “trespassing” statute. It is a misdemeanor punishable by up to only one year in prison unless the person used or carried a dangerous or deadly weapon. Because it is a misdemeanor, the Sentencing Guidelines do not apply, so a federal judge at sentencing can choose any term of days or months from 0 to 365. I expect most sentences will be “time served” for anyone held in pretrial detention, followed by a one-year term of supervised release — a form of federal probation. The bigger problem with this statute is that, by its own terms, it only applies to “posted, cordoned off, or otherwise restricted area of the White House or its grounds, or the Vice President’s official residence or its grounds; or of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting.” This is not a “trespassing” statute that applies to all federal buildings generally — only buildings or grounds secured by the Secret Service. The Capitol on January 6 qualified as such, but ONLY during the period up to the departure from the Capitol of the Vice President. So there is a timing issue with regard to when defendants were present inside the Capitol or in a cordoned-off area of the Capitol grounds.