Prosecutors overseeing the extensive investigation into the Capitol riot this winter have begun offering plea agreements to defendants, several lawyers said, a significant step in moving the investigation into the attack.
The largely informal plea negotiations are at an early stage and by the end of last week only one defendant among hundreds of defendants had pleaded guilty. However, many attorneys have recently confirmed they have had private conversations with the government trying to determine how much prison time their clients might be willing to accept.
“What’s going on,” said Gregory T. Hunter, who has represented several Capitol Hill defendants, “is a process of finding numbers that each hopes will fairly describe what people have done.”
The expansion of plea agreements, even on a large scale, is typical of a legal system in which the vast majority of criminal cases never reach a jury. The likelihood that many, if not most, of the more than 400 defendants indicted January 6 will plead guilty will have an additional benefit in Washington: it will relieve the city’s federal court of the burden, numerous To conduct legal proceedings at Once.
The hashing of plea agreements will also force the government to grapple with the tension in mass persecution that has been central from the outset: the struggle to create justice on an individual level for the often overlapping actions of a mob.
In court this week, prosecutors said they would soon offer plea agreements to four men accused of assaulting police in a hand-to-hand combat near the entrance to the Capitol’s Senate wing. But in order to formulate the deals precisely, the prosecutors not only have to determine which of the men did what to which of the officers, but also how badly the officers were injured.
By and large, the penalty areas for federal crimes are set by law, although it is at the prosecution’s discretion to ask judges to add more time to certain sentences for a variety of so-called improvements. Defense lawyers anticipate that the Department of Justice will ultimately develop a standardized method for calculating plea agreements in the Capitol’s numerous cases, and create “packages” that contain preset offers for offenses such as misdemeanors or offenses.
But that has yet to be done, and some lawyers have complained that haggling over requests felt improvisational and sometimes confusing – like buying a used car.
At a hearing for Richard Barnett, an Arkansas man perhaps best known for being photographed with feet propped on a desk in Nancy Pelosi’s office, prosecutors said they had offered a deal that resulted in a sentence of 70 to 87 months could result in jail. Mr Barnett’s attorney, Steven Metcalf, later said he was disappointed with the proposal and couldn’t understand why the government was offering so much time to a man who didn’t break anything or hurt anyone in the Capitol.
“It seems like they are actually trying to dissuade us defenders from taking these offers seriously,” Metcalf said. “That is how far they are.”
Other lawyers have taken a more generous position.
Albert Watkins represents several Capitol defendants, including Jacob Chansley, the so-called QAnon shaman, who broke through the building with face paint and a horned fur cap and carried a spear draped with an American flag. While refusing to go into the details of his talks with the government, Mr Watkins said that after the nudge, prosecutors had begun treating the defendants individually rather than as an undifferentiated mass.
“The dialogue we heard originally was, ‘Hang them all on the nearest tree,” Watkins said. “But there has been a shift. Now the government’s position seems to be that many of these cases are less than real trials are to overthrow democracy. “
The Justice Department declined to comment on how many offers were offered or how the Department decided who would receive them.
The pre-trial case negotiation took place as some defendants and their lawyers decided to fight their cases and question the legal viability of certain charges that many people face. At least two defendants – a Texas florist and a Florida-based member of the far-right group Proud Boys – have filed motions to move their cases out of Washington.
The only defendant who has publicly accepted a plea is Jon Schaffer, a guitarist and songwriter for the heavy metal band Iced Earth, who is also a member of the militia group The Oath Keepers, according to prosecutors. At a hearing in April, Mr Schaffer admitted that he had entered the Capitol with a can of bear spray and had “verbally argued” with police officers. As part of his guilty plea, he agreed to work with prosecutors, possibly against some of the 12 other members of the Oath Guards who are also charged.
According to court records, at least one other Capitol defendant – Douglas Jensen, a QAnon believer who was one of the first to break into the building – is in formal talks with the government about a plea deal with a deadline set for next month should.
While prosecutors may have informal conversations with other lawyers and their clients, A.J. Kramer, the head of the Washington Federal Defense Bureau, which represents dozens of defendants, said no one on his staff had received a written offer from the government.
Even so, discussions about the offers – who might get them and how many they might be – are widespread among the few dozen Capitol Hill defendants who are being held together in custody in the same unit of the District of Columbia prison, a lawyer said who spoke about the condition of anonymity in order not to betray the trust of his customers.
The detained defendants – mostly in extremist groups or accused of attacking the police – have exchanged legal tips with each other, the lawyer said. Some, he said, have been considering a protest plan to fire their private attorneys and try to get the federal defense office to represent them to ensure the government would have to pay for their defense.
For Mr. Hunter, this all shows how difficult it was to track more than 400 people at essentially the same time. While plea agreements are the best, or perhaps the only way that the system can function without overloading, the process has not been an easy one.
“Everyone’s trying hard,” said Mr. Hunter, “but we’re doing pretty well over time.”