The Justice Department Is Struggling To Bring Capitol Riot Cases To Trial: Here's Why
After the U.S. Capitol riot, there was a sense that the Jan. 6 cases would be straightforward. But defense attorneys describe prosecutors as overwhelmed by evidence and struggling to build cases.
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ARI SHAPIRO, HOST:
Today, the House Select Committee began its investigation of the events of January 6. The FBI has been putting together the puzzle for months. Nearly 600 people have been arrested. Now the Justice Department has to find a way to resolve those cases. Dina Temple-Raston of NPR's investigations unit has spent the last few months talking to prosecutors, defense attorneys and defendants to understand the workings of justice in the wake of an unprecedented event.
DINA TEMPLE-RASTON, BYLINE: The FBI arrived at Suzanne Ianni's house on a January morning just before sunrise.
SUZANNE IANNI: Luckily, I was dressed. I was having some coffee. So my husband answered the door, and I'm looking out, and I saw two black SUVs, a police car. And I said, oh, they're here.
TEMPLE-RASTON: Ianni knew that federal agents would come looking for her. It was just a matter of time. Even so, nothing prepared her for the moment they said, you're under arrest.
IANNI: They said, no laces. (Laughter) I'm like, I'm not going to hang myself over trespassing, you know.
TEMPLE-RASTON: She and hundreds like her have been charged with illegally entering the Capitol and disorderly conduct. The criminal complaint against her opens with a picture of her on a bus with Trump supporters on their way to Washington. Then, on the next page, there's a photograph of her inside the Capitol, fist raised, looking as though she's shouting. Ianni is one of the original members of a Boston group.
IANNI: Super Happy Fun America, which is a center-right civil rights activist organization.
TEMPLE-RASTON: But Super Happy Fun America is a lot more complicated than that. It has ties to far-right extremists, and experts say it's been something of a gateway to more radical groups. The group, and Ianni, deny this is the case. But a handful of its members, in addition to Ianni, are facing charges related to January 6. Ianni was arrested in January, and it wasn't until May that prosecutors showed up with an offer. Take it or leave it.
IANNI: They're trying to scare all Trump supporters, all conservatives.
TEMPLE-RASTON: Her deal was basically this. If she pleaded guilty to one of the charges, turned over all her social media and answered all their questions about January 6, she might avoid jail time. Ianni says she thinks what they really wanted was information, specifically about members of the far-right extremist group, the Proud Boys.
IANNI: They always offered to escort us down 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.
TEMPLE-RASTON: Antifa is short for antifascists. The Justice Department is interested in the Proud Boys because so many of them are connected to the events of January 6. Thirty-two Proud Boys have been arrested and charged. That's more than any other organized group. Ianni, for her part, said she turned down the plea.
IANNI: As soon as I heard what they expected from me, I told them, no way.
TEMPLE-RASTON: It turns out, Ianni's plea offer wasn't unique. A dozen attorneys we spoke to said prosecutors floated almost identical deals to their clients, too. When people get caught up in violent protests in this country, prosecutors often roll out something called a deferred prosecution agreement. They offered them to protesters in Portland last summer. And, essentially, it says, stay out of trouble, and we'll give you a pass. But we couldn't find anyone charged with federal crimes related to January 6 who was offered a deferred plea agreement. Former DHS official and lawyer Juliette Kayyem says that's because the Justice Department has decided on a legal strategy of shock and awe. You arrest everyone, and you charge everyone.
JULIETTE KAYYEM: You start with the FBI and the investigations that are going on, and you keep them coming. And every jurisdiction has these cases. And if I sound harsh, good, because this was serious. I mean, this was an attempt to undermine a valid American election.
TEMPLE-RASTON: The Justice Department typically doesn't comment on ongoing cases, and they declined to speak in this case. So NPR interviewed four dozen defense attorneys, prosecutors and defendants, and they described a Justice Department under incredible stress, struggling with everything from evidence to assigning prosecutors to cases. Let's start with the problem of evidence. There's too much of it.
GREG HUNTER: Every one of those people was carrying a smartphone, every one of them. And they're all taking pictures and videos and on different platforms.
TEMPLE-RASTON: Greg Hunter is a defense attorney, and he's working on more than a dozen January 6 cases. And he said all those videos, the tweets, the Facebook posts have made it harder for the prosecution.
HUNTER: The evidence is significantly more complicated for them than they thought it was going to be.
TEMPLE-RASTON: Some of the defense attorneys NPR spoke to said they tried to resolve their clients' cases back in February, and prosecutors told them to wait. They said federal prosecutors told them they needed to assemble the evidence, so defendants shouldn't expect any plea offers until late April.
HUNTER: And at the time, that seemed like a million years (laughter). And late April came and went. I got one of the very first plea offers. I think I was third with Fitzsimons.
TEMPLE-RASTON: Fitzsimons - Kyle Fitzsimons - he was filmed at the Capitol with blood running down his face, dressed in one of those smocks that butchers wear.
HUNTER: Kyle Fitzsimons is a guy who had moved to Maine seeking, in his words, a life that was not in a multicultural hellhole.
TEMPLE-RASTON: A couple of years ago, Fitzsimons told a local town meeting that immigrants were robbing Maine of everything that made it special.
(SOUNDBITE OF ARCHIVED RECORDING)
KYLE FITZSIMONS: Keep Maine Maine.
TEMPLE-RASTON: Keep Maine Maine, he starts.
(SOUNDBITE OF ARCHIVED RECORDING)
FITZSIMONS: The state motto is I lead - Dirigo - OK? It's got two white laborers on it. Don't put them at the end of the line.
TEMPLE-RASTON: After January 6, he hired Greg Hunter as his lawyer.
HUNTER: He was most impressed that my name is Hunter and that the U.S. attorney was the last name of Wolfe. And so he was very impressed that I was going to be able to hunt the wolf. And I hadn't heard anything like that since about the third grade.
TEMPLE-RASTON: So Fitzsimons looked like he was going to get one of the first plea deals, but it was moving slowly. A Justice Department attorney told me on background that part of the reason for the snail's pace was top officials were concerned someone might go easy on a defendant and end up setting the bar for everyone else. That slow pace has caused another problem. Defense attorneys NPR spoke to said clients like Fitzsimons, who are in lockup, are getting angrier.
HUNTER: They bathe in each other's weird theories about stuff. They hear or misunderstand something about their own case, and that just ripples through all the other defendants.
TEMPLE-RASTON: There are about 50 January 6 defendants in that D.C. lockup. And Hunter says the waves of misinformation inside that facility ended up convincing Fitzsimons that the sheer act of holding him was wrong. His family declined to speak with NPR, but what we do know is that he eventually refused the plea deal and ended up firing Hunter.
HUNTER: The smart way to go here is to fire your lawyer, see if you can get some money back from that retainer and force the overworked federal public defender's office to defend you because they can't possibly get all of these cases done.
TEMPLE-RASTON: In fact, federal authorities say there are at least 300 more people they want to arrest and charge, and they're hunting for them now. We went to Virginia to meet one of the people the FBI might be looking for.
UNIDENTIFIED PERSON: We can sit in the kitchen. The kitchen's pretty clean.
TEMPLE-RASTON: OK.
And he didn't seem too bothered by the Justice Department's decision to play hardball. He was even happy to play us videos on his phone from that day, videos that appear to show him inside the rotunda of the Capitol.
(SOUNDBITE OF ARCHIVED RECORDING)
UNIDENTIFIED PERSON: (Chanting) Stop the steal. Stop the steal.
Yeah, that's me. I was saying stuff. I wasn't quiet (laughter). I'm not an angel, you know, so...
TEMPLE-RASTON: And while he hasn't been arrested or charged, he says he's not worried about the FBI showing up on his doorstep.
UNIDENTIFIED PERSON: No, I don't worry about it because I didn't do anything really - trespass.
TEMPLE-RASTON: Even so, he doesn't actually want to be arrested, so we agreed not to use his name. In the end, the Justice Department is trying to do more than just hold people accountable. The resolution of these cases could help Americans understand what really happened on January 6. Was it a protest that went off the rails or a calculated plan to launch a coup? Finding an answer to that could take a while. The majority of the trials are unlikely to start before 2022.
Dina Temple-Raston, NPR News.
(SOUNDBITE OF EMPRESS OF SONG, "TRISTEZA (DELOREAN REMIX)")
