Over 1,200 people have been arrested and hundreds prosecuted, but concerns have grown over prosecutorial tactics.
It’s been three years since the Jan. 6 “Stop the Steal” rally in Washington ended in a breach of the U.S. Capitol by protestors. In the interim, the Department of Justice (DOJ) and FBI have undertaken the largest manhunt in their history, arresting over 1,200 people who entered Capitol grounds that day. The manner of these arrests, and the information used to make them (in some cases) have raised questions about FBI protocol amid the agency’s effort to round people up. More than half of those arrested have faced sentencing on numerous charges.
Many of those held on charges related to Jan. 6 have been incarcerated in the D.C. Metropolitan Jail, dubbed the “gulag” by critics for the treatment of Jan. 6 defendants there. The political fallout of the events of that day continues to resonate throughout Washington and the nation as a whole.
Opponents of former President Donald Trump, including members of the House of Representatives’ now-defunct January 6 committee, have promoted the narrative that President Trump himself was responsible for the Capitol breach. These critics have argued that the Jan. 6 rally amounted to an attempted “insurrection” against the United States government and was guided by President Trump.
On these grounds, President Trump has faced challenges to his right to appear on the ballot in several states. He’s also been charged with a series of federal crimes related to the incident and its aftermath by special counsel Jack Smith, a move that has drawn sharp criticism from President Trump and his congressional allies, decrying it as a “witch hunt” against the 2024 Republican frontrunner. Even as the event itself fades into the historical background, its aftereffects continue to significantly influence American politics.
Here’s an overview of key events that have happened in the three years since Jan. 6, what’s to come, and the questions that remain unanswered.
Arrests and Prosecutions
According to the DOJ’s most recent statistics 1,237 people have been arrested in relation to Jan. 6. The vast majority of these people—1,160—have been charged with entering or remaining in a restricted federal building or grounds, including 140 charged additionally with entering the area armed with a dangerous or deadly weapon. About a quarter have been charged with obstruction of an official proceeding—a charge that critics say has been applied to a degree well beyond its original scope.
Roughly a third have been charged with assaulting, resisting, or impeding officers, including 120 charged with using a dangerous or deadly weapon or causing serious bodily injury to an officer. Seventy have been charged with destroying government property, while 56 have been charged with theft of government property.
Notably, despite claims that the event amounted to an insurrection, none of the defendants arrested in connection to Jan. 6 have been charged with insurrection.
Attorney General Merrick Garland has called this “the most wide-ranging investigation, and the most important investigation that the Justice Department has ever entered into.” However, the FBI’s tactics in making these arrests, and the methods it’s employed to identify and apprehend Jan. 6 suspects, have raised many questions. For instance, many Jan. 6 defendants have been arrested by use of a SWAT team. This is unusual, according to former FBI special agent Stephen Friend, who blew the whistle on the FBI’s handling of Jan. 6 cases and lost his job for it. “I’ve arrested over 150 violent criminals,” he said in a new documentary about Jan. 6 from The Epoch Times. “I never had to use SWAT.” He added, “That really is the utmost, highest level of enforcement.”
Former FBI special agent Garret O’Boyle, another whistleblower featured in the documentary, noted odd deviations from standard procedure in the ways that information against suspects was gathered. In one case, Mr. O’Boyle noted that information was obtained from an anonymous tip uncorroborated by law enforcement—a source of information not commonly given much credence among law enforcement officers. In another, he reported that a 25-year-old photo was used to identify a suspect—another deviation from standard procedure.
The FBI did not reply to a query on these allegations.
In other cases, information was acquired through the cooperation of social media companies and financial institutions. Particularly headline-grabbing was the revelation that Bank of America had “voluntarily“ handed over bank records to the FBI of people in Washington on Jan. 6.
All said, Jan. 6 defendants’ sentences add up to hundreds of years in prison. But the largest sentences have been reserved for those deemed ringleaders. Enrique Tarrio, the former leader of the Proud Boys, has been sentenced to 22 years in prison. Stewart Rhodes, leader of the Oath Keepers, was sentenced to 18 years. A handful of others considered most responsible for the events of that day have also received sentences of over a decade in federal prison.
‘January 6 Jurisprudence’
After their arrests, Jan. 6 defendants were subject to what attorney Joseph McBride dubbed “special January 6 jurisprudence,” which he described as a reversal of standing legal precedents in favor of pursuing and imprisoning Jan. 6 defendants.
“There’s a term that we developed in one of our cases, what we call the ’special January 6 jurisprudence,’” Mr. McBride told The Epoch Times. “It’s the concept that all constitutional law, criminal law, civil rights law—from the inception of our country, up until January 5, 2021—is one body of case law and then you have everything else that came after it.” He and fellow Jan. 6 attorney Ed Martin discussed a series of areas where “January 6 jurisprudence” diverged from what came before it, including in areas related to free speech, due process, and defendants’ core constitutional rights.
Many concerns about the treatment of Jan. 6 defendants in the courts revolve around a heretofore little-known statute of U.S. law against “obstructing an official proceeding.” The use of this obscure statute, Mr. Martin said, could be chilling on free speech. The statute, developed in the aftermath of a scandal wherein Enron employees shredded documents ahead of an investigation, is at its core similar to obstruction of justice, Mr. McBride told The Epoch Times. For roughly 330 Jan. 6 defendants, however, the scope of the law has been expanded dramatically.
The relevant section of U.S. law imposes a penalty of up to 20 years in prison on felony charges for “whoever corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so.” But its use in the case of Jan. 6 defendants is unprecedented, Mr. McBride said, and could have serious implications for freedom of speech in the United States. “It’s an obstruction charge and it has to do with a person or a group of people, like Enron, destroying evidence relating to a forthcoming investigation,” he said.
“Did any of these people do that? No. Do you see people running around with ballots in their hands? No,” Mr. McBride said. “So they improperly expanded the scope of this statute in order to create this massive dragnet under which they would drag all these people into it.” Mr. Martin added that by extension, the application of the law could be used to chill political speech. The law “is supposed to be about evidence tampering,” Mr. Martin said. “It’s supposed to be about altering evidence. It’s not about when there’s an official event, a school board meeting, an Electoral College count, a congressional hearing.”
With the expanded scope of the statute, Mr. Martin said, everyday Americans could find themselves facing felony charges and up to 20 years in prison simply for undertaking any action that could be construed as obstructing or interrupting anything deemed an “official proceeding.” “So now, if you go to any public meeting, you go to your town council and get up and say, ‘You’re killing babies, stop abortion now,’ and they gavel out the meeting, you’ve now committed a felony in America,” he said.
Currently, a case about the application of the law by federal prosecutors is pending in the Supreme Court, where the attorneys expressed optimism that it would be struck down. Additionally, prosecutors in many of the cases sought the addition of a so-called “terrorism enhancement” during sentencing, one of several considerations that can be used to dramatically increase the prison sentences of those convicted of a crime.
The threat of having this enhancement applied against him was part of what drove 37-year-old Matthew Perna—already facing charges of witness tampering, entering and remaining in a restricted building or grounds, and two counts of disorderly conduct—to commit suicide, his aunt, Gerri Perna, told The Epoch Times. Mr. Perna was initially set to face four misdemeanor counts. Later, the DOJ escalated the charges, adding on the felony charge for obstruction of an official proceeding and threatening to further lengthen the sentence by requesting the terrorism enhancement. “Matthew Lawrence Perna died on February 25, 2022 of a broken heart,” his family said in an obituary. “His community (which he loved), his country, and the justice system killed his spirit and his zest for life.”
Due Process Concerns
Also within the scope of “January 6 jurisprudence,” Mr. McBride contends, is a series of due process violations that have grown to be nearly commonplace in Washington’s courts. Mr. Martin argued that this was part of a methodological approach on the DOJ’s part. “Part of the approach of the Justice Department and the prosecutors and law enforcement has been to intimidate, if not terrorize, the people they are arresting,” Mr. Martin said.
Both attorneys listed a series of examples, many of which began well before Jan. 6 defendants ever stepped into a courtroom. Generally, when someone is arrested on charges of a crime, they are only held in prison prior to their trial or plea agreement under very limited circumstances, Mr. McBride said, including whether their alleged crime was violent and if they posed a flight risk. For many Jan. 6 defendants, it didn’t work out that way. These defendants instead faced months in prison ahead of their court dates. “In 99.9 percent of all these cases, these men should have all been sent home during the pendency of their trials,” Mr. McBride said. “Because the D.C. court wanted to punish them—not for what they did, but for what they believe in, and who they support—they lock these men up in complete violation of the due process rights.”
While in pretrial detention, these defendants faced persistent violations of their constitutionally guaranteed rights amid conditions that one member of Congress described as “nothing short of human rights violations.” They were subjected to solitary confinement and neglect of their core physical health, were deprived of basics like razors and haircuts and, in some cases, were beaten and verbally abused by guards.
Cynthia Hughes, aunt of Jan. 6 defendant Tim Hale-Cusanelli, told The Epoch Times that the conditions these defendants faced in jail were “despicable. “They’re denied every basic human right,” Ms. Hughes said. Like other Jan. 6 defendants, Mr. Hale-Cusanelli wasn’t allowed outside, wasn’t allowed access to priests or spiritual advisors, and his core physical health was disregarded. At the time, Mr. Hale-Cusanelli was suffering from an ear infection that had nearly deafened him in one ear, with little medical intervention offered by the jail.
These degrading conditions, Mr. McBride said, amounted to a violation of the 8th Amendment’s prohibition on cruel and unusual punishment. “If you’re convicted of a crime, and you go to jail, the punishment for your crime is the deprivation of your freedom,” he said. “You’re not allowed to punish people cruelly and unusually, not allowed to lock people up in solitary confinement, feed them bugs, medically torture them, whatever it is. That’s what the prohibition against cruel and unusual punishment is.”
This was far from the only violation of the defendants’ due process rights, the attorneys say. In many cases, they were deprived access to the lawyers for long periods of time. Their communication with their lawyers, Mr. McBride said, was subject to inspection. Protected attorney-client conversations were monitored, constituting a violation of Sixth Amendment rights. Additionally, Mr. McBride said, some defendants have been deprived of their Brady rights. Brady rights refer to the Supreme Court precedent requiring the prosecution to turn over all exculpatory evidence to the defendant and their legal counsel.
An additional due process concern referenced by both attorneys was that of venue. Of the many cases tried in Washington, practically every defendant sought a change of venue, noting that Washington, perhaps the most Democrat-leaning city in the country, was incapable of providing them with a fair jury of their peers. Every single one of these requests was denied, Mr. McBride said.
The DOJ did not return a request for comment.
Aside from the effects on the lives of those caught up in the FBI’s massive prosecutorial net after Jan. 6, the event’s political fallout continues to resonate to this day. The Capitol breach has been used by Democrat activists as justification to remove President Trump from the ballot in several states. A portion of the post-Civil War 14th Amendment prohibits any person who, “having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same” from holding public office again.
Many Democrats maintain to this day that Jan. 6 constituted an attempted insurrection against the United States government, despite the lack of insurrection charges against any of its participants. The leader of this alleged insurrection, they say, was President Trump, and his allies. This was the narrative advanced by the Jan. 6 panel, which was disbanded after Republicans took back the House.
Under that panel, terms like “insurrection,” “assault on democracy,” and “attack on the Capitol” became commonplace in the mainstream media when referring to the events of the day. “The narrative that they continue to promote, and to this day they do it, is that these are armed insurrectionists, who are felonious bad actors,” Mr. Martin told The Epoch Times.
Thus far, this narrative has been used as the basis both for a federal criminal prosecution of President Trump, and as the basis for his removal from the 2024 presidential ballot. States like Colorado and Maine have attempted to do so, pending intervention from the Supreme Court. Legal experts, however, expect the high court to overturn the effort. Still, as President Trump appears poised to clinch his party’s nomination for the presidency later this year, Jan. 6 seems likely to remain a forefront political issue for some time.
While much has been uncovered about what really happened on Jan. 6 by invested journalists diligently scrutinizing the thousands of hours of photos and videos taken that day, many questions remain unanswered three years after the fact. A major lingering question involves the absence of the National Guard that day. President Trump, aware of the potential for violence on Jan. 6, had authorized the deployment of the National Guard to the Capitol, pending approval of Congress’ sergeants at arms and Washington Mayor Muriel Bowser. Without the consent of these two, President Trump was unable to unilaterally order the presence. Both declined to request the assistance, leaving the Capitol understaffed and unprepared for the massive crowds that descended on it that day. Questions as to why this assistance was not requested by any of the relevant authorities—and why the Capitol was so understaffed that day—have yet to be answered.