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The Justice Department is struggling to bring Capitol riot cases to trial: Here’s why

Defense attorneys describe prosecutors as overwhelmed by evidence and struggling to build cases

  • By Dina Temple-Raston and Tim Mak/NPR
A mob breached security and stormed inside the U.S. Capitol on Jan. 6. The woman in blue with her fist raised was later identified as Suzanne Ianni.

 Roberto Schmidt / AFP via Getty Images

A mob breached security and stormed inside the U.S. Capitol on Jan. 6. The woman in blue with her fist raised was later identified as Suzanne Ianni.

Early one morning last January, Suzanne Ianni peered through her window to discover two black SUVs and a police cruiser parked in front of her house. All she could think was: “Aw, they’re here.”

While Ianni had been expecting federal agents for days, she wasn’t fully prepared for their arrival or for the moment when they said ‘you’re under arrest.’ “And I just sat down in a chair, I was trying to catch my breath,” she told NPR. “And they’re like, okay just relax,” she said. “It’s only a misdemeanor.”

Ianni, a 59-year-old mother of three, is one of the more than 570 people charged for being part of the mob that overran the U.S. Capitol on Jan. 6. She stands accused of disorderly conduct and being inside a federal building illegally.

The morning the FBI came, she recalls her husband handing her a coat and some shoes and then when the agents told him ‘no laces,’ Ianni couldn’t help but laugh. “I’m like okay, I’m not going to hang myself over trespassing, you know.”

The attack on the Capitol is something most Americans watched in real time on TV or Facebook or Twitter, from the police battered in hand-to-hand combat on the stairs, to the fatal shooting of a woman just outside the Senate chamber.

In the weeks afterward, there was a general sense that the Jan. 6 cases would be of the slam-dunk variety. After all, the events took place not just before our eyes but also at a time when the endless selfies, live-streamed video, and GPS locations were easily vacuumed up for use in court later. But attorneys working for the defense describe prosecutors as overwhelmed by the evidence and struggling to build cases.

“The evidence is significantly more complicated for them than they thought it was going to be, that’s clear,” Greg Hunter, a defense attorney who is working on a dozen Jan. 6 cases, told NPR. “Every one of those people was carrying a smartphone, every one of them, and they’re all taking pictures and videos and all that evidence has actually slowed everything down.”

Attorney Gregory T. Hunter stands outside the E. Barrett Prettyman Federal Courthouse in Washington, D.C. (Ting Shen for NPR)

Only 25 people have pleaded guilty so far which leaves a good 550 more cases left to resolve. To try to understand why all this is moving so slowly, NPR spent months speaking with dozens of Jan. 6 defense attorneys, prosecutors, and defendants both on and off-the-record.

What our reporting found was that the mountain of evidence is not the only reason why justice appears to be slow. Officials are also having trouble just finding prosecutors to assign to the cases, and some of those prosecutors say officials at headquarters are micromanaging the process, which is hobbling progress as well.

Ianni had a typical experience: Though she was arrested less than two weeks after the riot, it took months for prosecutors to provide her lawyer with even the most basic evidence. By Spring, she had already seen two prosecutors cycle through her case and has recently been assigned a third.

She and her lawyer say she was offered a plea agreement in May — four months after her arrest — which the prosecutor said was a take-it-or-leave it deal and had to be approved by officials in Washington before it could be confirmed. All this, just for trespassing and disorderly conduct — two of the basic charges related to the Capitol riot.

The Justice Department declined to comment about the case or for this story.

Three categories of defendants

The Justice Department has created a kind of framework for prosecutions, dividing the Jan. 6 defendants into three categories. The first includes people like Ianni who went inside the Capitol, and allegedly walked around and aren’t charged with property damage or assaulting police.

The shorthand used to describe these people (both among some Justice Department insiders and defense attorneys) is “the tourist cases” — a nickname derived from the words of Rep. Andrew Clyde who rather infamously said, “if you didn’t know the TV footage was a video from January the 6, you would actually think it was a normal tourist visit.”

The second category of defendants includes those who broke into the Capitol, damaged property and attempted to stop the certification of the 2020 election. They are facing charges of civil disorder and assault and include people like Tampa crane operator Paul Allard Hodgkins, 38. He was seen carrying a red-and-white “Trump 2020” flag into the well of the Senate while others stood over the vice president’s abandoned chair.

Brent Stirton / Getty Images

Rioters clash with police as they try to storm the U.S. Capitol on Jan. 6. The Justice Department has created a kind of framework for prosecutions, dividing the Jan. 6 defendants into different categories based on what they are accused of doing that day.

Hodgkins pleaded guilty in June to one count of obstructing an official proceeding, which carries a maximum sentence of 20 years in prison. Prosecutors asked for eighteen months. Earlier this month, U.S. District Judge Randolph D. Moss sentenced him to somewhat less than that: eight months because, the judge said, he pleaded guilty early and seemed remorseful about what he had done. Some two dozen others have also pleaded guilty in recent weeks.

And finally there is a category that prosecutors have yet to define precisely. These are the people investigators believe are connected to right-wing extremist groups like the Proud Boys, Oath Keepers, and Three Percenters. Officials are investigating whether or not there is hard evidence that shows the assault was planned in advance. Illuminating that would go a long way toward clarifying what actually took place that day.

Super Happy Fun America

Before all this happened, Suzanne Ianni was best known in the Boston suburb of Natick, Mass., as one of the first members of a group called Super Happy Fun America. She describes it as a “center-right civil activist organization.”

Despite its jovial name, Super Happy Fun America is more complicated than that. It has ties to far-right extremists and a handful of its members, in addition to Ianni, are facing charges related to Jan. 6.

Before the Capitol riot, the group’s greatest claim to fame was organizing the 2019 Straight Rights Parade in Boston. Ianni told me that the organizers thought straight people deserved a parade just like gay people did. The point wasn’t anti-gay, she said, although a lot of people saw it that way.

Perhaps that’s because a right-wing extremist group called the Proud Boys provided security for the event and one of the parade’s headliners was Milo Yiannopolos, who is known for his racist and misogynist rants. “It wasn’t anti-anything,” Ianni maintains. “We said if you love liberty you can march in our parade.”

And while the group claims to be just calling out political correctness and poking fun at the left, people who track the group say it has become a gateway for more extremist groups because it helps normalize radical ideas. Super Happy Fun America denies this. Ianni, a Natick Town Meeting member, told me they’re just fighting to preserve the U.S. Constitution.

In 2020, COVID restrictions and the election became hot button issues for the group and its followers. Despite the evidence, Ianni still believes the election was stolen and that the people who descended on the Capitol that day were just trying to hold Congress to account.

“This whole thing about insurrection is a bunch of BS,” Ianni said. “There was no insurrection. It was an act of civil disobedience. It was a walk through by people taking selfies. It was a symbolic walk through… that was 97 percent of the people.”

According to NPR’s Capitol Riot database, about 20 percent of the people charged committed acts of violence.

A prosecution memo

Back in the Spring, the Justice Department in Washington, D.C., sent a memo to department lawyers setting out a strategy for the prosecution of the Jan. 6 cases. The memo, some of which was read to NPR, asked officials, among other things, to develop a kind of continuum of culpability.

The idea was to develop a matrix that would allow prosecutors to charge the hundreds of people who breached the Capitol building in a more systematic way. If someone broke through a police line to enter the Capitol how might they be charged differently than someone, like Ianni for example, who is not accused of participating in any violence.

Joseph Prezioso / AFP via Getty Images

Ianni argues with another person on Jan. 6 near the pro-Trump rally that later turned into a violent attack on the U.S. Capitol.

These kinds of prosecution memos aren’t unusual. They are meant to set legal priorities for the nation. In May 2017, President Trump’s first Attorney General, Jeff Sessions, wrote a short memo calling for a resumption of mandatory minimum sentences, instructing prosecutors to pursue the harshest possible charges. Before that, a prosecution memo during the Obama administration from Attorney General Eric Holder, Jr., ordered prosecutors to curtail severe penalties for low-level federal drug offenses.

The prosecution memo that went out after Jan. 6, according to two people who described it to NPR, told federal prosecutors out in the field that headquarters, known as Main Justice, would need to approve all plea agreements. Prosecutors in the field generally have discretion on what they can offer to resolve a case without going to trial. But that hasn’t happened here. Four defense attorneys told NPR that prosecutors floated plea deals in the spring, but said they couldn’t guarantee those deals would be honored because they had to be sanctioned by higher-ups in Washington.

Consider Ianni’s case. Her plea offer was a take-it-or-leave-it deal. The prosecutor told Ianni’s lawyer that she could plead guilty to one of the misdemeanor charges against her and would also have to agree to give the government unfettered access to her social media accounts and answer their questions under oath — something known as a proffer.

Typically proffers are statements limited to what a particular person did on a particular day. But this proffer was different, it was not limited to what a particular suspect did on Jan. 6. Instead it would have allowed prosecutors to ask a wide range of questions — all of which, under the terms of the plea, defendants would have to answer honestly. Half a dozen defense attorneys contacted by NPR said they had received nearly identical plea deals for clients who were charged with trespassing and disorderly conduct. They called the broad proffers a Justice Department “fishing expedition.”

Ianni and her lawyer believe that prosecutors wanted her proffer not because of anything she did that day, but rather to gather evidence against some people with whom she is associated. She knows some of the Proud Boys, one of the far-right extremist groups prosecutors have had in their sights.

M. Scott Brauer for NPR

Ianni was one of the first members of a group called Super Happy Fun America and is still a part of the group, which has ties to far-right groups like the Proud Boys. Some members of the Proud Boys came to D.C. with Ianni on Jan. 6.

“They always offered to escort us down [to rallies in Washington D.C] because despite what’s being said about the Proud Boys, they’re really just a bunch of guys who put their bodies in between us and Antifa,” Ianni said, referring to a loose movement of activists whose followers have attended protests around the country.

The Justice Department is particularly interested in the Proud Boys as it continues to investigate whether the events of Jan. 6 were planned in advance. So far, 32 members of the group have been arrested and charged with Jan. 6 offenses, more than any other organization. Two dozen Oath Keepers have been similarly charged.

“The connections between people are seemingly the most important thing to them,” said defense attorney Hunter. “How much of this is organized? How much of this goes back home, because that’s what shows you what you really have to be worried about.”

Ianni, for her part, told her lawyer to turn down her plea deal. “As soon as I heard what was expected of me, I told them, ‘no way,’” she said.

Shock and awe

Often, when otherwise law-abiding citizens get caught up in violent protests in this country, prosecutors roll out something called a deferred prosecution agreement. Essentially, it is an agreement that says if the defendant stays out of trouble, and perhaps pays a fine, prosecutors will give them a pass. That helps move cases along.

Four defense attorneys interviewed by NPR said that they were told by federal prosecutors that deferred prosecution agreements for Jan. 6 defendants were a non-starter, even for the lowest level charges. Justice officials, they said, told prosecutors working the cases that they were not authorized to offer them.

And that’s odd, Henry Fasoldt, Ianni’s lawyer, told NPR, because even people arrested for violence during last summer’s protests against systemic racism and police brutality managed to get those kinds of deals.

Demonstrators try to open a door of the U.S. Capitol on Wednesday, Jan. 6, 2021, in Washington.

Jose Luis Magana / AP Photo

Demonstrators try to open a door of the U.S. Capitol on Wednesday, Jan. 6, 2021, in Washington.

“That’s really interesting to me,” Fasoldt said. “Even people who were charged with violent crimes in Oregon got deferred prosecution agreements. None of those deals are being offered to Capitol rioters, even those with nonviolent misdemeanor crimes. The discrepancy doesn’t make any sense to me.”

Others say that there is, in fact, a big difference: the violent mob that stormed the Capitol on Jan. 6 threatened hundreds of lawmakers, former Vice President Mike Pence and current Vice President Kamala Harris.

Fasoldt says people like Ianni shouldn’t be charged as part of a mob; They’re individuals. And their cases should be treated that way.

Juliette Kayyem, a former assistant secretary at the Department of Homeland Security in the Obama administration, said the Justice Department has decided to play hardball with Jan. 6 defendants — hoping to prevent future attacks. They have opted for a legal strategy in the mold of shock-and-awe: Arrest everyone, charge everyone.

“You start with the FBI and the investigations that are going on and you keep them coming,” she said. “And every jurisdiction has these cases and if I sound harsh, good, because this was an attempt to undermine a valid American election.”

National Guard troops are seen behind shields as they clear a street from protestors outside the Capitol building on January 6, 2021 in Washington, DC.

Roberto Schmidt / AFP via Getty Images

National Guard troops stand behind shields as they clear a street from protestors outside the U.S. Capitol building on Jan. 6.

The Department of Justice announced in early July that the arrests and charges aren’t over. They expected to round up hundreds more people in the coming months.

Prosecutors and defense attorneys NPR talked to agreed about one thing: the best way for the nation to understand what took place Jan. 6 is to present evidence in court that shows what happened . Collectively, America has yet to decide whether Jan. 6 was a protest that went off the rails or a calculated plan to launch a coup. A full hearing may help provide a more satisfying answer.

Suzanne Ianni’s next hearing is scheduled for July 28.

NPR’s Allison Mollenkamp contributed to this report.

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