Prolix and Prosecution

My old pal, BMAZ, tried to infuse a bit of perspective into the extremely hyperfocused obsessive parsing of the prosecutions stemming from the January 6th insurrection.

People in our comments are out of their minds. The entire matter is 65 days old. And y’all are whining about the hanging rope not being strung up yet. All the minute by minute microanalysis from news reports and release pleadings is NOT evidence. The last big conspiracy case I was involved in had somewhere near 100+ defendants. It took the govt nearly somewhere around two years to bring it in.

Folks really need to get a grip and chill out. The critical AG was sworn in literally like yesterday. Step back a tad. News articles and release pleadings are NOT evidence, not yet anyway. Take a chill pill.

The comments were to a post by Marcy Wheeler at Empty Wheel about the motion to reconsider bond for Thomas Caldwell, alleged to be part of the OathKeeper conspiracy. Marcy digs and digs deeper, which enables her to find things that others often miss. At the same time, Marcy isn’t a lawyer, so it can often be more like an academic exercise of obsessing about minutiae than a practical discussion of legal process.

Bill’s point, that most of what people believe they know comes from sources that are neither so inherently reliable that they’re worthy of this excruciating level of parsing nor relevant at this stage of the proceedings. It’s a bail app, for crying out loud, not a two-week trial on one minor facet of an argument for release on bond.

Non-lawyers can harp on some tiny aspect of a case, blow it out of proportion and believe with all their heart that this petty sideshow is critical to the case. They will argue the tangential point to death. They will focus on one aspect of an argument to the exclusion of the million others without any recognition that it just isn’t worth that level of scrutiny, of obsession. It might matter a little, but not all that much.

There were a lot of people storming the Capitol on January 6th, each of whom is an individual defendant entitled to an individual charge, assessment of their conduct and defense. Some shared motives. Some shared intent. Some just got swept up in the moment as others had more nefarious plans. Some were dumb. Some were not so dumb. Distinguishing between them is what the Department of Justice is trying to do now.

Federal prosecutors have begun seeking 60-day delays across a series of Capitol riot cases, calling the probe “likely the most complex investigation ever prosecuted by the Department of Justice.”

In a nine-page filing lodged in multiple cases Friday morning, U.S. attorneys handling cases stemming from the Jan. 6 insurrection cited the rapidly growing roster of defendants and the enormous cache of evidence they must sift through to get a complete picture of the crimes committed that day.

At this point, the feds have arrested about 300 defendants and anticipate another 100 arrests. But it’s not just the numbers of bodies, but the evidence amassed against them.

That evidence, they said, includes findings of more than 900 search warrants executed in nearly every state. It also includes more than 15,000 hours of surveillance and body-worn camera footage supplied by some of the 14 federal and local law enforcement agencies that participated in the Capitol response — from the FBI to the Secret Service to the Arlington, Va., police department.

Authorities are also combing through 1,600 electronic devices, conducting hundreds of searches of text messages from multiple providers, and reviewing 210,000 tips and 80,000 witness interviews.

This is a massive volume of evidence to sift through, the coordination of which is itself massive. This raises two ironically conflicting problems. First, the feds aren’t like state criminal systems, where they can walk through the bottom tier of defendants, the “trespassers” if you will, who in state court would mostly cop out at arraignment, get a fine or community service, and disappear from everyone’s mind. State courts are well-suited for handling cattle calls. Federal courts were never crafted for volume and aren’t geared up for it.

To be fair, it might not be possible at this stage to distinguish who is a mere trespasser and who was integral to some more nefarious conspiracy. That won’t be known until the evidence is vetted, integrated and then subject to deeper scrutiny. Think of this in comparison to a mob case, where years of evidence are gather to pierce the veil of secrecy to get a handful of defendants. This, as Bill notes, can take years to do, and even then doesn’t always work. But here, it’s closer to prosecuting tribes of feral cats.

Federal District Court Judge Trevor McFadden said he didn’t entirely agree with the government’s decision to tag the Capitol attack as a “complex case.”

“I’m not sure that this counts as a complex case. I’m not ready to make that determination right now,” he said. “The complex cases that I‘m used to look very different.”

Still, McFadden called the situation “very unusual” and acknowledged the huge volume of video evidence and other material the government has to organize.

Is this as complex a case as the government, as non-lawyers, make of it? Sure, it’s of enormous public interest, and consequently seems worthy of a level of detailed scrutiny by people who have more time and passion than experience in court. Has the government gone way overboard in its investigation, its use of warrants, surveillance, seizures and interviews? Is all of this necessary to prosecute the individuals involved, or is this about something bigger, investigating a grand right wing conspiracy or groups of insurrectionists dedicated to keeping King Donald on his throne?

Or were these a handful of nutjobs deluded by wannabe demagogue and their red-hatted pals who were dumb enough to believe the half-baked, baseless narrative of a rigged election? If you think the government isn’t moving swiftly enough to expose the right wing wrong, just wait until people realize that the defense lawyers for each of these defendants will have to sift through this evidence as well. They won’t have the money, manpower or alphabet agencies to facilitate their efforts, and this could take years to do before they’re ready to decide whether to take a plea or take the case to trial.

We’re at the very beginning of what could be a very complex, or not really all that complex, case, and the obsession of those who have the time and interest isn’t going to do much to illuminate what’s happening or what will come in the future. But there is a good chance that future will be years away because that’s what happens when you make a federal case out of it.