Bruce Fein says the Jan. 6 defendants are no more political prisoners or martyrs than were the Watergate defendants.
Storming of U.S. Capitol on Jan. 6, 2021. (Tyler Merbler, CC BY 2.0, Wikimedia Commons)
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.
Not Guantanamo
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.
FBI poster seeking information on violence at the Capitol published January 6, 2021. (F.B.I., Public domain, Wikimedia Commons)
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.
“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.”
Is it considered high praise to not literally lynch political prisoners in the United States? Congratulations on not ruthlessly murdering citizens non-violently exercising their democratic right to protest I guess.
“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.”
Unsurprising that the people deeply embedded and integrated into meting out these inhuman and medieval punishments shy away from acknowledging that they constitute torture. Ask any random person on the street if extreme solitary confinement is torture and they will likely answer ‘yes’, better yet you could just ask UN Special
Rapporteur of the Human Rights Council on torture and other cruel, inhuman, or degrading treatment or punishment.
“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.”
So you concede that the criminal prohibition of seditious conspiracy was invoked inappropriately. An injustice committed to a minority of people is still an injustice?
“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.”
Do you understand what the word ‘like’ means?
“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.”
Ashley Babbit was murdered in cold blood by Capitol Police that day, and you do not mention her a single time. You spend lots of ink complaining about property damage and minor injuries and somehow forget to mention the ONLY person who was killed that day. Probably just a coincidence that she was killed by cops.
“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.”
This is perhaps the most hysterical and unhinged part of the entire piece. Do you honestly believe that this one guy wearing a funny hat was singularly responsible, over and above every other person on the day, for obstructing the transfer of presidential power? It’s honestly such an incredible claim it amazes me that you can air it in public without inviting ridicule. You are saying that the Qanon shaman nearly created a crisis comparable to the civil war. I don’t know how to explain to you how patently stupid this is.
The worst part of the whole article aren’t any of the blatant distortions or exagerrations, but rather what is -not- mentioned. These sham proceedings were very obviously politically motivated. The continuous and breathless media coverage (which destroyed any possibility of an impartial judgement), the political grandstanding and crocodile tears from members of congress, the Trump factor… The partisan nature of the whole affair is insultingly obvious and doesn’t even warrant a mention from yourself.
This was Pelosi’s Reichstag fire. She refused the offer of National Guard troops from then President Trump. She likewise prevented the Capitol police from doing their job. Then she ordered the doors of the Capitol opened to lure the victims in. Incitement was provided by a large number of FBI paid agitators. The people who walked around the Capitol that day were guilty of nothing but falling for entrapment from the corrupt FBI and Fascisti Pelosi herself.
Long jail sentences for goofiness? Characterizing this clown car as an insurrection is absurd. Would I want to spend a weekend in a cabin in the woods with these bozos? No, no, no! But seriously, these sentences are totally out of proportion.
If the author wants liberty and justice for all, let him urge that the feds prosecute Assange in Washington, DC. rather than in the Pentagon suburb we call the District of Northern Virginia, and that the January 6 crew be tried in the Northern District of Virginia rather than in that hub of Democratic base voters we call the District of Columbia.
The late and lamented Kenneth Winston Starr certainly appreciated the difference, which is why he had a wired Linda Tripp entice Monica Lewinsky to rendezvous at a hotel lobby just on the Virgnia shore of the Potomac.
I saw video of the January 6th riot as well. It was a tale of two protests. In the front, people pushing, yelling, screaming, slamming against doors to get in. And another in the back where crowd was let past the barricades by the capital police and allowed to enter the capital building, which they did in an orderly fashion.
This was not a coup. This was not an insurrection. This was a protest that turned into a riot. Nothing more nothing less. That people broke any laws, they should be prosecuted. However, to claim that they participated in an attempt to over throw the government of the United States is pure non sense. When the military decides to participate, then call me. Otherwise total snoozeville.
FYI, Bruce Fein “has worked for the American Enterprise Institute and the Heritage Foundation, both conservative think tanks, as an analyst and commentator.”
So is Fein just another neocon tool or someone who never saw the video of the Capital Police opening doors for the protestors?
Bruce Fein is worth hearing from, but a first impression:
The headline and the picture directly contradict each other. Was that intentional?
That is, th epicture shows a sea of political signs. Evidently the motive, at least, WAS political.
The shockingly disparate treatment afforded the J6 accused in comparison to that given the mostly peaceful accused burners, looters, and rioters of BLM/Antifa during the summer of 2020 all seemed somewhat curious.
Dare anyone even ask at this late date, how many FBI/DOJ/NSA/Homeland Security resources were devoted exclusively to tracking down all of those dangerous middle aged, underclass, and unarmed J6 rioters? That is, how many resources in comparison to the efforts spent on rounding up and prosecuting all of the Molotov cocktail & brick throwing BLM/Antifa miscreants?
Nevertheless, we are now told that we must trust Merrick Garland’s DOJ and Christopher Wray’s FBI?
Fide Nemini!
The author is obviously extremely intelligent and knowledgeable; however, utter marination in DC/MSM groupthink makes even such people make nonsensical arguments. Examples:
“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.”
Is the author really comparing connected, powerful and knowledgeable lawyers like the ones listed with the everyday people who were demonstrating on Jan 6? Really? And prosecuting these poor saps is similar to taking the powerful to justice? In what way?
“But the law sharply distinguishes between peaceful protests and violence coupled with vandalism. Jan. 6 was the latter.”
Yes, some of the participants in the peaceful protests later rioted. But certainly not all those who participated in the demonstration rioted and not even all those who entered the Capitol did violence … many just walked in. Painting all those who demonstrated as “violent insurrectionists” makes Hedges’ point. Also, violence during demonstrations is sadly commonplace and is rarely punished in this manner.
“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.”
This whole “obstructing” issue needs its own article … what the Hell does it even mean? ANY demonstration against unjust laws is an attempt to obstruct the carrying out of that law or process. Has the author heard of civil disobedience? And since when has public civil disobedience been responded to with 5 years of prison? As for “threatening” … telling your children not to testify against you? Really?
The author is obviously approaching this issue under the mindset that the demonstrators of Jan 6 had no true political point to make and were simply criminals violently blocking lawful processes. However, the exact same arguments could be used against any large protest like anti-nuke, anti-war, and anti-police-violence protests that impede official govt actions. I remind the knowledgeable author of the “right of the people peaceably to assemble, and to petition the Government for a redress of grievances” whether or not that right interferes with some govt procedure.
“There is not a single ruling by any of these judges in hundreds of cases that wrongly applied the law.”
Wow, man, are you out of touch or what.
Wow. Fein is able to point to the conviction of Jeffrey Epstein as a vindication of the US justice system without so much as a sidelong glance at the continuing lack of interest in his client list. He speaks proudly of the Watergate convictions without a word about the murky CIA background left unexplored. He is able to get all puffed up about the righteousness of Chansley’s 3-year sentence because it’s “obstruction of peaceful transfer of power” without the hint of an acknowledgement of the same guy variously urging everyone to give up and go home or the video of him being led around on a sort of tour with an evidently amiable DC police officer.
Fein has clowned himself. But hey thanks for the opinion.
Very disappointing to see this nonsense defending the farce of “insurrection” here.
The essential issue for the January 6 arrests and trials is *prosecutorial discretion*. Prosecutors exercise discretion in deciding which actions that potentially violate the law are to be the object of prosecution.
Because the US is so rich in laws of great generality, it is estimated that every American could be be prosecuted for a felony, subject to the discretion of a prosecutor. So prosecutors have enormous power, and there is risk that they could abuse this power.
During summer of 2020 there were widespread extremely violent protests that received relatively little prosecutorial attention. January 6, in contrast, has attracted vigorous law enforcement. Prosecutorial discretion is a big factor in this differential treatment.
This raises big and disturbing questions. Are laws being enforced selectively? Is there a pattern to such prosecutorial discretion? Does it depend on whom you protest against (or whom you attack)?
Going deeper, in light of very different patterns of prosecution, is our legal system neutral? Does the USA enjoy the rule of law? Are our institutions legitimate? Or is the law applied selectively in the service of particular interests? These are big and scary questions.
The lesson offered by January 6 in the US looks similar to the lesson offered recently to protesters in Belarus: if you protest against the government, you will rot in jail. (But if you protest against *challengers of the government*, prosecutors will leave you alone.)
The fundamental question: is dissent becoming illegal? Yes, it *can* happen here.
Prosecutorial discretion is the mechanism for the abuse of power.
The article above completely ignores this problem in our legal system. I see the article as part of the problem, because it glosses over prosecutors’ power to selectively crush dissent.
All very good points – I really hope Hedges writes a response to this article and delves into some of the areas you bring up.
Even better, perhaps, would be a debate between these 2 distinguished persons.
Better still, perhaps, would be a debate between Fein and Hedges.
While Hans’ comment raises an important point about American prosecutorial discretion, I think it is a bit unfair to criticize Fein for not including it in his article. It is somewhat tangential to his main points. In fact, it could well be that Fein agrees with Hans’ on prosecutorial discretion being a problem in the American justice system. He simply was not dealing with comparisons with other prosecutions, or lack thereof.
While Hans’ comment raises an important point about American prosecutorial discretion, I think it is a bit unfair to criticize Fein for not including it in his article. It is somewhat tangential to his main points. In fact, it could well be that Fein agrees with Hans’ on prosecutorial discretion being a problem in the American justice system. He simply was not dealing with comparisons with other prosecutions, or lack thereof.
Is the writer of this article delusional?
This is funny. The author must have mistaken Consortium for The Onion.
“…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. ”
True, we had only seen this once in our lifetimes, the continual Resistance, slow-walking and obstruction of the previous administration as it came into power and continuing for four years, including illegal FISA warrant violations, and the ludicrous continual Russiagate “investigations” and impeachments, the silencing of the Hunter laptop issue immediately before the 2020 election (and continual censoring of anyone who criticized the Establishment), the holding off of announcing the availability of the “Trump” Covid vaccines until after the election. Election interference need not come at the ballot box, nor at the Capitol; State Media always picks the winner in totalitarian countries, and the US is getting a taste of that now.
The “insurrection” was similar to the Governor Witmer “kidnapping”, largely instigated by federal agents who could have stopped it at any time. As Chris Hedges pointed out, THE PROTESTERS HAD NO WEAPONS. Was it Hedges who stated I have been in coups d’ etat and this was not one? Max Blumenthal, who was there, stated that this was just a bunch of idiots, some violent, and was more interested in John Sullivan and other instigators. And in contrast to the January 6th Committee’s egregious claims, there were NO policemen killed on January 6th (a handful of protesters died that day.) Officer Brian Sicknick, a Trump supporter, died of a stroke the following day. The basis for the ensuing four police suicides is not clear, nor is the cause of death clear for the Senate Sargent of Arms, Michael Stenger, who was supposedly going to give testimony to the Committee about instigators at the event, but supposedly died the day before his scheduled testimony.
The US had seen several recent unruly protests (a Constitutional Right) at the Kavanaugh hearings and many deadly protests over the George Floyd protests. Montez Terriel Lee finally received a ten year sentence for burning a man alive at such a protest in Minneapolis; (surprisingly others who were involved were not even arrested).
I don’t like Trump, and hopefully he will be arrested and not run again. However the actions of the Establishment against Trump since 2016 have been reprehensible, and went largely unpunished, and even celebrated.
The writer seems to be a bit naive. Not a word about the context and the political aspects. Not a word about deep state and fbi involved. I think he may be write in legal issues but forgets conveniently everything else.
Right on Vesa.
I have seen quite a bit of video from Jan 6… I feel like these convictions are mostly fair and justified… The number one rule of an attempted coup is you better be successful or else you might end up dead… Some of these people are lucky we don’t execute them
Right, and Harriet Beecher Stowe caused the Civil War.
I was very annoyed by that article. Hey, Chris, how dumb will you feel when Q anon starts citing your article for the violence they will perpetuate against democrats. Good Job.
Yes … and Martin Luther’s 95 Theses led to the 30 Year War … I bet he felt dumb, amirite?