Justice Department considers NOT charging up to 800 MAGA rioters who caused havoc at the Capitol 'since most of them just trespassed and were not violent'

  • Internal debate between FBI and prosecutors over whom to charge in MAGA riot 
  • Some believe it may be best not to charge most of those who stormed Capitol 
  • Others worry that declining to bring charges may encourage future attacks 
  • DOJ officials worry that too many cases could swamp the DC federal courts 
  • There is worry that simply bringing trespassing charges may result in trial loss 
  • DOJ officials acknowledge many of those in the Capitol did not commit violence 

The FBI and prosecutors at the Justice Department are debating whether to decline to charge some of the MAGA rioters who stormed the United States Capitol on January 6 in an attempt to derail President Joe Biden's certification.

There is concern among DOJ officials that bringing charges against all of the estimated 800 rioters who ransacked the Capitol building could flood the local federal courthouse in Washington, DC, with cases.

There have been internal discussions about forgoing charges against those who were not involved in any violence or vandalism but were simply trespassing or 'going along with the crowd,' The Washington Post reported.

But the Post report indicates that those talks are only in their early stages and no decisions have been made.

DOJ and FBI officials are mindful of the fact that declining to charge rioters could be perceived as the federal government condoning political violence and unlawful behavior.

Those who support bringing charges against all of the rioters argue that doing so would bring a measure of deterrence that would make others think twice about engaging in similar acts in the future, according to the Post.

There are internal discussions ongoing at the Justice Department over whether to decline to bring charges against many of those seen storming the United States Capitol building on January 6

There are internal discussions ongoing at the Justice Department over whether to decline to bring charges against many of those seen storming the United States Capitol building on January 6

But there is no denying that the workload that will inevitably accumulate by charging hundreds of people will increase the burden on DOJ and FBI agents who have already indicted more than 135 suspects.

In 2019, the DC federal courts tried about 430 criminal cases. Last year, that number fell to fewer than 300 due to the pandemic.

'There is absolute resolve from the Department of Justice to hold all who intentionally engaged in criminal acts at the Capitol accountable,' a Justice Department spokesperson told the Post.

'We have consistently made clear that we will follow the facts and evidence and charge individuals accordingly.

'We remain confident that the US District Court for Washington, DC can appropriately handle the docket related to any resulting charges.'

There appears to be unanimous agreement among Justice Department officials to bring charges against alleged extremists who are suspected of coordinating and planning violent actions inside the Capitol.

Prosecutors have indicated that they intend to bring seditious conspiracy charges to anyone who has been found to plot violent actions against the government.

Some Department of Justice officials worry that not bringing charges against some of the rioters could be interpreted as a signal that future acts of political violence will not be punished. The Department of Justice headquarters is seen above in Washington, DC

Some Department of Justice officials worry that not bringing charges against some of the rioters could be interpreted as a signal that future acts of political violence will not be punished. The Department of Justice headquarters is seen above in Washington, DC

Among those who participated in the January 6 assault were members of the Oath Keepers, which often recruits current and former military, police or other first responders; the Proud Boys neo-fascist group; followers of QAnon, which spreads bizarre conspiracy theories; racists and anti-Semites; and others with nearly blind devotion to then-President Donald Trump.

Federal authorities on Tuesday presented new details about three self-described members of a paramilitary group who were the first to be charged with plotting the attack.

The FBI said a Virginia man, Thomas Edward Caldwell, appeared to be a leader of the effort.

Caldwell and a man and woman from Ohio were all charged with conspiracy and other federal counts.

The chilling details in the case included communications between the defendants and others.

'All members are in the tunnels under the capital,' the FBI quoted a message sent to Caldwell during the Capitol attack.

'Seal them in turn on gas.'

Other messages referred to the legislators as 'traitors' and called for 'night hunting.'

The FBI collected social media messages, photos and video to identify them as part of the Oath Keepers, which believes in a 'shadowy conspiracy' to strip Americans of their rights.

Defense lawyers for those who have been charged plan to use the 'Trump defense' and claim that they were doing what they were told to do by then-President Trump. A large crowd of Trump supporters is seen above at the 'Stop the Steal' protest outside of the Capitol building in Washington, DC, on January 6

Defense lawyers for those who have been charged plan to use the 'Trump defense' and claim that they were doing what they were told to do by then-President Trump. A large crowd of Trump supporters is seen above at the 'Stop the Steal' protest outside of the Capitol building in Washington, DC, on January 6

Messages included in FBI charging documents had quotes with the three suspects exulting over breaching the Capitol, and Caldwell telling an Oath Keepers leader he was ready to attack Ohio's capital of Columbus.

'We need to do this at the local level,' he allegedly messaged.

'Lets (sic) storm the capitol in Ohio. Tell me when!'

Details of the documents made public offer some insight to planning and coordination behind the extraordinary attack, which apparently took law enforcement by surprise despite various warnings online.

But there is serious question as to whether it is worth pursuing charges against a large majority of the people who were seen streaming into the Capitol.

Those individuals entered the grounds of the building and trespassed, but they were not involved in any serious crimes that would warrant stiff prison sentences.

There is also a fear among federal prosecutors that bringing trespassing charges against those who did not commit any other violent acts could lead to losses in trial.

'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,' one official said.

DOJ officials told the Post that evidence is still being gathered and that those rioters who were initially thought to be relatively harmless could be charged if photos or videos show them committing serious crimes.

There is also the expectation that some of those charged will cooperate with authorities and provide information that would incriminate others.

Several supporters of then-President Trump, including the 'QAnon Shaman' Jake Angeli (center), are seen above entering the US Capitol on January 6

Several supporters of then-President Trump, including the 'QAnon Shaman' Jake Angeli (center), are seen above entering the US Capitol on January 6

Federal prosecutors believe they will have a difficult time winning court cases against mostly nonviolent people who would only be charged with unlawful entry. The image above shows rioters break into the Capitol on January 6

Federal prosecutors believe they will have a difficult time winning court cases against mostly nonviolent people who would only be charged with unlawful entry. The image above shows rioters break into the Capitol on January 6

Trump supporters are seen in the above photo storming the US Capitol on January 6

Trump supporters are seen in the above photo storming the US Capitol on January 6

Federal investigators are examining whether extremist far-right militias plotted the attack and coordinated with each other in carrying out the assault on the US Capitol on January 6

Federal investigators are examining whether extremist far-right militias plotted the attack and coordinated with each other in carrying out the assault on the US Capitol on January 6

So far, most of those who have been arrested have no criminal records.

Those who will be charged in connection with the Capitol riot will likely invoke the 'Trump defense' - that they were doing the bidding of President Trump when they stormed the Capitol.

While that defense would not prevent federal prosecutors from bringing charges, it could persuade a judge to be more lenient during trial and sentencing.

'It's not like a bunch of people gathered on their own and decided to do this, it's not like a mob,' one lawyer representing a defendant charged in connection to the riot told the Post.

'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.'

One option that federal prosecutors are weighing for non-violent Capitol offenders is to enter deferred plea agreements in which they agree to drop charges if they do not commit crimes over a certain period of time. 

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