You likely recognize my slight modification of the iconic line from the poem, The Night Before Christmas, a/k/a, A Visit From St. Nicholas. It came instantly and unbidden to mind upon reading today’s Washington Post report entitled, Justice Department, FBI debate not charging some of the Capitol rioters. https://wapo.st/2KGv2hM

No, I am not making this up. The story was written by two highly accomplished reporters: Devlin Barrett and Spencer Hsu. As astounding and gut-wrenching as the story is, I take it for true.

The prosecutors’ discussions are assertedly based on a number of key ideas:

1. About 800 people (+/- 100) entered the Capitol unlawfully; bringing so many cases could overload the local court;

Objection: The message from such nonsense is: “if you’re going to be part of an illegal mob action, be sure it’s a big one.” Is that really the message the FBI/DOJ want to send here?

2. Some insurrectionists may only be guilty of “unlawful entry,” not having engaged in “violent, threatening or destructive behavior” – they merely went along with the crowd;

Objection: The perpetrators were not mere bystanders to a large-scale criminal event. They were active participants. “I just went along with the crowd that killed people and stole property” has never been a defense; why now? How do you discourage such conduct in the future if you decide to look the other way for most of the people involved?

3. “The primary objective for authorities is to determine which individuals, if any, planned, orchestrated or directed the violence” – people who “planned and carried out violence aimed at the government” may face charges of seditious conspiracy, carrying a maximum penalty of 20 years in prison;

Hint for FBI/DOJ: good; go big with the charges for the planners; by the way, there is substantial provable evidence that the individual who orchestrated the violence was the president, Donald J Trump. Indict him.

4. “…investigators are still gathering evidence, and agents could easily turn up additional photos or online postings that show a person they initially believed was harmless had, in fact, encouraged or engaged in other crimes.”

Another Hint for FBI/DOJ: What?? Harmless??? It is impossible to conclude rationally that any person who entered the Capitol with the mob on Jan. 6 was “harmless.” The harm began with the attack on the defending police force and continued unabated for hours. Those who entered knew they weren’t supposed to be there, saw the violence directed at the small police contingent in place to defend the Capitol and, based on extensive video, did nothing to try to stop the entry/violence that was perpetrated by the mob of which they were a part, even if they did not all directly engage in violence against the police, the building or its contents. Sacking the Capitol cannot be harmless.

5. Some people may have done nothing but enter, look around and leave. If the only charge is unlawful entry, prosecutors might lose some cases. The exact quote in the story was: ““If an old man says all he did was walk in and no one tried to stop him, and he walked out and no one tried to stop him, and that’s all we know about what he did, that’s a case we may not win,”

Objection: So what? Irrelevant. Prosecutors are seriously concerning themselves with the remote possibility that a handful of the invaders said “whoopsie, this has gotten out of hand; think I’ll just wander on outside and watch the fun from there?” Every prosecutor, every trial lawyer, has lost some cases. It’s not a shame; happens to the best of them once in a while. Losing should be the last thing FBI/DOJ are concerned about here.

  6.  Most of the arrestees have no prior criminal records;

Objection: Utterly irrelevant; for every criminal, there is a first time. A first-time murderer is no less a murderer because he’s not murdered before. If this has any bearing, it’s at sentencing, but surely is not a factor in deciding whether to prosecute. Surely.

7. “…defense lawyers … are contemplating something akin to a “Trump defense” — that the president or other authority figures gave them permission or invited them to commit an otherwise illegal act.”

Yet Another Hint to FBI/DOJ: this “defense” gets a good grade for clever and bold, but it’s wrong and thus no cigar. This is the point at which I seriously consider screaming obscenities. The president lacked authority to give anyone legally effective permission to force their way into the Capitol to interfere with the scheduled work of Congress. Being delusional may get you a reduced sentence, maybe, but it cannot and should not insulate you from self-evidently unlawful conduct. Believing the unbelievable (the election was stolen –Trump said so) is no excuse.

8. In a remarkable double/triple entendre, or something, the argument is noted that Trump’s impending impeachment trial will “raise questions about the culpability of followers for the misinformation spread by leaders around bogus election-fraud claims rejected by courts and state voting officials.” Further,

“It’s not a like a bunch of people gathered on their own and decided to do this, it’s not like a mob. It’s people who were asked to come by the president, encouraged to come by the president, and encouraged to do what they did by the president and a number of others,” said one attorney representing defendants charged in the breach who spoke on the condition of anonymity to discuss legal strategy.”

Objection: – this is the “I was too stupid to know how stupid I was…” defense. Or the “my president made me do it” defense. It speaks for itself, which is what lawyers say when they don’t know what to say. Defense lawyers may try this, which is their right, but this is not the basis for prosecutorial deference. If anything, it should inspire more aggression on the part of prosecutors.

9. “For rioters with no previous criminal records or convictions and whose known behavior inside the Capitol was not violent or destructive, the government could enter into deferred plea agreements, a diversion program akin to pretrial probation in which prosecutors agree to drop charges if a defendant commits no offenses over a certain time period.”

Another Note: the article says this tactic “has been used before in some cases involving individuals with a history of mental illness who were arrested for jumping the White House fence. Criminal defense attorneys note there may be further distinctions between individuals who may have witnessed illegal activity or otherwise had reason to know they were entering a restricted area, and those for whom prosecutors can’t show such awareness.”

Objection: This is just a variant of “I didn’t know breaking into the Capitol with a raging, screaming mob breaking windows and attacking police was illegal.” It is, I suggest, preposterous even for Trump true-believers. It’s like the “Martians made me do it” defense deeply felt perhaps but just plain wrong. We cannot have a society in which people get away with crimes because they say they’re too ignorant to know what is right and wrong. Plead insanity if you think you can establish it, but this, again, is not a ground for prosecutors to lay off.

I close this part of the post with this final quote from the story:

“There is absolute resolve from the Department of Justice to hold all who intentionally engaged in criminal acts at the Capitol accountable,” Justice Department spokesman Marc Raimondi said in an email. “We have consistently made clear that we will follow the facts and evidence and charge individuals accordingly. We remain confident that the U.S. District Court for Washington, DC can appropriately handle the docket related to any resulting charges.”

We must certainly hope that Mr. Raimondi’s declaration is correct. This may be the most appalling story I have read about the justice system — ever.

I cannot get my mind around the idea that (1) the president of the United States calls a mob of supporters to Washington and, along with some family members and attorneys, urges the crowd to “walk down to the Capitol” (lying about his intention to join them), (2) for the avowed purpose of preventing final Congressional certification of the presidential election the president clearly lost AND (3) the people who follow his suggestion take the walk (over a mile, plenty of time to think about what they’re doing), (4) assault the Capitol police, (5)  join the mob forcing its way into the building through smashed windows/doors, (6) are present during multiple melees throughout the building including attacks on police, and (7) are allowed to simply walk out without impediment — are being considered for leniency by prosecutors.

Have we lost our collective minds? Is this the lingering product of Trump’s undermining of the Department of Justice? Let these people walk and they will just go home, laughing all the way. What happened to respect for law, never mind “law and order?” This was an insurrection against the government of the United States. People died. A police officer attacked by the mob died. Why aren’t “felony murder” charges appropriate (participation in the commission of a felony, where a death occurs during that felony, even if the defendant wasn’t the one who killed the victim)? Why isn’t felony murder being discussed? What is going on here?