Bruce Fein says the Jan. 6 defendants are no more political prisoners or martyrs than were the Watergate defendants.
By Bruce Fein
Special to Consortium News
Chris Hedges in a column published March 6 on Consortium News, “Lynching the Jan. 6 Deplorables,” deplores the prosecutions, convictions and sentencing of the hundreds of participants in the Jan. 6, 2021 insurrection against the U.S. Capitol with the undisputed objective of preventing the peaceful transfer of presidential power in violation of the 12th Amendment and the Electoral Count Act.
Chris Hedges is a gifted writer. He is a trenchant thinker. He is intellectually courageous. But even Milton occasionally stumbled in Paradise Lost. What Hedges deplores is justice at its best — its finest hour since the Watergate prosecutions of the 1970s.
Lynching is what plagued blacks during the decades of Jim Crow at the hands of the Ku Klux Klan. The Jan. 6 arrestees, detainees and convicts have been treated with kid gloves in comparison.
Judges in these cases are independent, Article III judges serving for life including numerous appointees of former President Donald Trump. There is not a single ruling by any of these judges in hundreds of cases that wrongly applied the law.
Hedges correctly notes that the U.S. legal system has a sordid history. But it also sports a luminous history. The Watergate trials brought the most powerful to justice, including Dwight Chapin, Chuck Colson, John Dean, John Ehrlichman, H.R. Haldeman, John Mitchell, Herb Kalmback, Egil Krogh, Herb Porter and Maurice Stans. The Jan. 6 prosecutions, convictions and sentences exhibit the same luster.
The article decries the treatment of Jan. 6 prisoners and denounces “Special Administrative Measures” (SAMs), which are likened to torture prohibited by the Eighth Amendment and the Convention Against Torture. But SAMS have not been selectively used against Jan. 6 detainees, and none have come within shouting distance of proving torture in a court of law.
The Classified Information Procedures Act of 1980, also mentioned in the article, was signed into law by President Jimmy Carter. It has not been used in any of the Jan. 6 prosecutions. It prohibits a criminal prosecution from proceeding unless a summary of classified evidence is provided to the defendant sufficient to safeguard the constitutional right to a fair trial.
The judicial system in the United States is condemned in the article as subordinate to the interests of big business and billionaires also convicted Bernie Madoff and Jeffrey Epstein. Linda Brown and Jehovah’s Witnesses prevailed in Brown v. Board of Education and West Virginia School Board of Education v. Barnette, respectively. The current Supreme Court interpreted Title VII of the Civil Rights Act of 1964 to prohibit discrimination based on sexual orientation in Bostock v. Clayton County.
Prosecutorial misuse of the criminal prohibition of seditious conspiracy (8 U.S.C. 2384) is claimed. But that charge has been brought against a miniscule fraction of the 1,003 Jan. 6 arrestees and have yielded six convictions and four guilty pleas.
Lawyer Joseph D. McBride is quoted in the article as likening the treatment of Jan. 6 prisoners to the waterboarding, ostracism, blacklisting, immigration harassments and indefinite detentions at Guantanamo Bay without trial of Muslims that unfolded after 9/11. McBride says:
“The post 9/11 model is being applied to American citizens. That model is the 19 hijackers … They should be waterboarded. They should be put in fucking jail and left in Guantanamo Bay… They’re a threat based on who they are, what they look like, what they believe in… If we get on a plane next to one of these people, we get nervous about it because that’s how much it’s ingrained in us. The same thing is happening … to a new group of people, primarily white Christians, Trump supporters, for now.”
But there has been no waterboarding. No Guantánamo Bay. No blacklisting Trump supporters from air travel or harassment by border patrol.
The article expresses concern that the law will be unable to discern the difference between peaceful civil disobedience that harms no one and leaves property undisturbed in the Capitol with the Jan. 6 insurrection. But the law sharply distinguishes between peaceful protests and violence coupled with vandalism. Jan. 6 was the latter.
The insurrection injured at least 138 police officers. Property damage approximated $2.7 million. Rioters stormed the offices of then House Speaker Nancy Pelosi, flipping tables and ripping photos from walls; the office of the Senate Parliamentarian was ransacked; art was looted; and feces were tracked into several hallways. Windows were smashed throughout the building, leaving the floor littered with glass and debris.
[On Thursday a defendant who, according to Politico, “surged with the mob into Speaker Nancy Pelosi’s office and helped strategize ways for the mob to overcome police resistance” was sentenced to 36 months in prison.]
Rioters damaged, turned over, or stole furniture. One door had “MURDER THE MEDIA” scribbled onto it. Rioters damaged Associated Press recording and broadcasting equipment outside the Capitol after chasing away reporters. Rioters also destroyed a display honoring the life of congressman and civil rights leader John Lewis.
McBride declaims that the jury pool is tainted in Washington, D.C. But he ignores that judge trials are an option for defendants. And the poisoned jury pool claim was made in Watergate which attracted far more sustained, saturated media coverage than Jan. 6... But no jury prejudice was ever proven.
McBride also argues against the invocation of 18 U.S.C. 1512 to convict persons of obstructing or impeding the official proceeding of the vice president’s counting electoral votes before Congress as provided by the 12th Amendment and the Electoral Count Act. He says:
“It has no applicability to Jan. 6 whatsoever… They weaponized it against these people and made it impossible to defend themselves. When you look at the civil disorder charge, they are saying that January 6th was one big civil disorder, and if you had any type of interaction with a police officer that day that may or may not have caused the police officer to step away from his duties for a moment, you can go down with civil disorder and get five years in jail.”
But McBride does not identify a single actual case that fits his argument.
Hedges insinuates disproportion between the more than three year prison sentence of Jacob Chansley, the so-called “QAnon shaman,” and his conviction for “obstruction.” He omits that Chansley was not convicted of obstructing a picnic outing of Mary Poppins with Jane and Michael Banks, but with obstructing the peaceful transfer of presidential power in violation of the 12th Amendment and Electoral Count Act — which would have created a constitutional crisis only exceeded by the Civil War.
[Read Consortium News editor’s response to this article.]
Hedges also implies Guy Wesley Reffin’s sentence of more than five years imprisonment was excessive despite conviction on five charges including obstructing the peaceful transfer of presidential power and obstruction of justice by threatening his two children if they told the truth. Obstruction of justice subverts the rule of law. It occasioned President Richard Nixon’s resignation and President Bill Clinton’s impeachment.
The case is raised of Ryan Nichols, a Marine Corps veteran, accused of five felony and three misdemeanor counts for assaulting police officers and obstructing the counting of electoral votes under the 12th Amendment for the peaceful transfer of presidential power. As a Marine, Nichols swore to uphold and defend not sabotage the Constitution.
Not a single aspect of Nichols’ pre-trial treatment has deviated from the law. He is not rotting in the Bastille. He is living comfortably under house arrest in Texas. He may leave for church, legal and medical services. His day in court is scheduled for this Monday, when he will enjoy the full panoply of constitutional protections for defendants, including cross-examination, the privilege against self-incrimination, and the presumption of innocence.
The Jan. 6 defendants are no more political prisoners or martyrs than the Watergate defendants. History will treat them as defectors from our constitutional dispensation.
Bruce Fein was associate deputy attorney general and general counsel of the Federal Communications Commission under President Reagan. His website is www.lawofficesofbrucefein.com. His twitter feed is @brucefeinesq. His Substack address is brucefein.substack.com
The views expressed are solely those of the author and may or may not reflect those of Consortium News.