The Justice Department Is Struggling To Bring Capitol Riot Cases To Trial: Here's Why

Jul 27, 2021
Originally published on July 27, 2021 6:08 pm

Early one morning in January, Suzanne Ianni peered through her window to discover two black SUVs and a police cruiser parked in front of her house. All she could think was: "Aw, they're here."

While Ianni had been expecting federal agents for days, she wasn't fully prepared for their arrival or for the moment when they said, "You're under arrest." "And I just sat down in a chair, I was trying to catch my breath," she told NPR. "And they're like, OK just relax," she said. "It's only a misdemeanor."

Ianni, a 59-year-old mother of three, is one of the more than 570 people charged as being part of the mob that overran the U.S. Capitol on Jan. 6. She stands accused of disorderly conduct and being inside a federal building illegally.

The morning the FBI came, she recalls her husband handing her a coat and some shoes and then when the agents told him "no laces," Ianni couldn't help but laugh. "I'm like OK, I'm not going to hang myself over trespassing, you know."

Ianni is one of the more than 570 people charged as being part of the mob that overran the U.S. Capitol on Jan. 6. She is accused of disorderly conduct and being inside a federal building illegally.
M. Scott Brauer for NPR

The attack on the Capitol is something most Americans watched on TV or Facebook or Twitter, from the police battered in hand-to-hand combat on the stairs, to the fatal shooting of a woman just outside the House chamber.

In the weeks afterward, there was a general sense that the Jan. 6 cases would be of the slam-dunk variety. After all, the events took place not just before our eyes but also at a time when the endless selfies, livestreamed video and GPS locations were easily vacuumed up for use in court later. But attorneys working for the defense describe prosecutors as overwhelmed by the evidence and struggling to build cases.

"The evidence is significantly more complicated for them than they thought it was going to be, that's clear," Greg Hunter, a defense attorney who is working on a dozen Jan. 6 cases, told NPR. "Every one of those people was carrying a smartphone, every one of them, and they're all taking pictures and videos and all that evidence has actually slowed everything down."

Attorney Greg Hunter stands outside the E. Barrett Prettyman U.S. Courthouse in Washington, D.C. Hunter is a defense attorney who is working on a dozen Jan. 6 cases.
Ting Shen for NPR

Twenty-five people have pleaded guilty so far, which leaves a good 550 more cases left to resolve. To try to understand why all this is moving so slowly, NPR spent months speaking with dozens of Jan. 6 defense attorneys, prosecutors and defendants, both on and off the record.

What our reporting found was that the mountain of evidence is not the only reason why justice appears to be slow. Officials are also having trouble just finding prosecutors to assign to the cases, and some of those prosecutors said officials at headquarters are micromanaging the process, which is hobbling progress as well.

Ianni had a typical experience: Though she was arrested less than two weeks after the riot, it took months for prosecutors to provide her lawyer with even the most basic evidence. By spring, she had already seen two prosecutors cycle through her case and has recently been assigned a third.

She and her attorney say she was offered a plea agreement in May — four months after her arrest — which the prosecutor said was a take-it-or-leave it deal and had to be approved by officials in Washington, D.C., before it could be confirmed. All this, just over trespassing and disorderly conduct — two of the basic charges related to the Capitol riot.

The Justice Department declined to comment about the case or for this story.

Three categories of defendants

The Justice Department has created a kind of framework for prosecutions, dividing the Jan. 6 defendants into three categories. The first includes people such as Ianni who went inside the Capitol and allegedly walked around but aren't charged with property damage or assaulting police.

The shorthand used to describe these people (both among some Justice Department insiders and defense attorneys) is "the tourist cases" — a nickname derived from the words of Rep. Andrew Clyde, R-Ga., who rather infamously said, "If you didn't know the TV footage was a video from Jan. 6, you would actually think it was a normal tourist visit."

The second category of defendants includes those who broke into the Capitol, damaged property and attempted to stop the certification of the 2020 election. They are facing charges of civil disorder and assault and include people such as Tampa, Fla., crane operator Paul Allard Hodgkins, 38. He was seen carrying a red-and-white "Trump 2020" flag into the well of the Senate, while others stood over the vice president's abandoned chair.

Rioters clash with police as they try to storm the U.S. Capitol. The Justice Department has created a kind of framework for prosecutions, dividing the Jan. 6 defendants into different categories based on what they are accused of doing that day.
Brent Stirton / Getty Images

Hodgkins pleaded guilty in June to one count of obstructing an official proceeding, which carries a maximum sentence of 20 years in prison. Prosecutors asked for 18 months. This month, U.S. District Judge Randolph D. Moss sentenced him to somewhat less than that: eight months because, the judge said, he pleaded guilty early and seemed remorseful about what he had done. Some two dozen others have also pleaded guilty in recent weeks.

And finally there is a category that prosecutors have yet to define precisely. These are the people investigators believe are connected to right-wing extremist groups such as the Proud Boys, Oath Keepers and Three Percenters. Officials are investigating whether or not there is hard evidence that shows the assault was planned in advance. Illuminating that would go a long way toward clarifying what actually took place that day.

Super Happy Fun America

Before all this happened, Ianni was best known in the Boston suburb of Natick, Mass., as one of the first members of a group called Super Happy Fun America. She describes it as a "center-right civil activist organization."

Super Happy Fun America is more complicated than its jovial name would suggest. It has ties to far-right extremists, and a handful of its members, in addition to Ianni, are facing charges related to Jan. 6.

Before the Capitol riot, the group's greatest claim to fame was organizing the 2019 Straight Rights Parade in Boston. Ianni told me that the organizers thought straight people deserved a parade just like gay people did. The point wasn't anti-gay, she said, although a lot of people saw it that way.

Perhaps that's because a right-wing extremist group called the Proud Boys provided security for the event, and one of the parade's headliners was Milo Yiannopoulos, who is known for his racist and misogynist rants. "It wasn't anti-anything," Ianni maintains. "We said if you love liberty you can march in our parade."

And while the group claims to be just calling out political correctness and poking fun at the left, people who track the group say it has become a gateway for more extremist organizations because it helps normalize radical ideas. Super Happy Fun America denies this. Ianni, a Natick Town Meeting member, said the group is just fighting to preserve the U.S. Constitution.

In 2020, COVID-19 restrictions and the election became hot-button issues for the group and its followers. Despite the evidence, Ianni still believes the election was stolen and that the people who descended on the Capitol that day were just trying to hold Congress to account.

"This whole thing about insurrection is a bunch of BS," Ianni said. "There was no insurrection. It was an act of civil disobedience. It was a walk-through by people taking selfies. It was a symbolic- walk through. ... That was 97% of the people."

According to NPR's Capitol riot database, about 20% of the people charged are accused of committing acts of violence.

A prosecution memo

Back in the spring, the Justice Department in Washington sent a memo to department lawyers setting out a strategy for the prosecution of the Jan. 6 cases. The memo, some of which was read to NPR, asked officials, among other things, to develop a kind of continuum of culpability.

The idea was to develop a matrix that would allow prosecutors to charge the hundreds of people who breached the Capitol building in a more systematic way. If someone broke through a police line to enter the Capitol, how might this person be charged differently than someone, such as Ianni, for example, who is not accused of participating in any violence?

Ianni argues with another person on Jan. 6 near the pro-Trump rally that preceded the attack on the U.S. Capitol.
Joseph Prezioso / AFP via Getty Images

These kinds of prosecution memos aren't unusual. They are meant to set legal priorities for the nation. In May 2017, the first attorney general in the Trump administration, Jeff Sessions, wrote a short memo calling for a resumption of mandatory minimum sentences, instructing prosecutors to pursue the harshest possible charges. Before then, a prosecution memo during the Obama administration from Attorney General Eric Holder Jr. ordered prosecutors to curtail severe penalties for low-level federal drug offenses.

The prosecution memo that went out after Jan. 6, according to two people who described it to NPR, told federal prosecutors out in the field that headquarters, known as Main Justice, would need to approve all plea agreements. Prosecutors in the field generally have discretion on what they can offer to resolve a case without going to trial. But that hasn't happened here. Four defense attorneys told NPR that prosecutors floated plea deals in the spring but said they couldn't guarantee those deals would be honored because higher-ups in Washington had to sanction them.

Consider Ianni's case. Her plea offer was a take-it-or-leave-it deal. The prosecutor told Ianni's attorney that she could plead guilty to one of the misdemeanor charges against her and would also have to agree to give the government unfettered access to her social media accounts and answer their questions under oath — something known as a proffer.

Typically proffers are statements limited to what a particular person did on a particular day. But this proffer was different; it was not limited to what a particular suspect did on Jan. 6. Instead, it would have allowed prosecutors to ask a wide range of questions — all of which, under the terms of the plea, defendants would have to answer honestly. Half a dozen defense attorneys contacted by NPR said they had received nearly identical plea deals for clients who were charged with trespassing and disorderly conduct. They called the broad proffers a Justice Department "fishing expedition."

Ianni and her lawyer believe that prosecutors wanted her proffer, not because of anything she did that day but rather to gather evidence against some people with whom she is associated. She knows some of the Proud Boys, one of the far-right extremist groups prosecutors have had in their sights.

Ianni was one of the first members of a group called Super Happy Fun America and is still a part of the group, which has ties to far-right groups such as the Proud Boys. Some members of the Proud Boys came to Washington with Ianni on Jan. 6.
M. Scott Brauer for NPR

"They always offered to escort us down [to rallies in Washington] 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," Ianni said, referring to a loose movement of activists whose followers have attended protests around the country.

The Justice Department is particularly interested in the Proud Boys as it continues to investigate whether the events of Jan. 6 were planned in advance. So far, 32 members of the group have been arrested and charged with Jan. 6 offenses, more than any other organization. Two dozen Oath Keepers have been similarly charged.

"The connections between people are seemingly the most important thing to them," defense attorney Hunter said. "How much of this is organized? How much of this goes back home, because that's what shows you what you really have to be worried about."

Ianni, for her part, told her lawyer to turn down her plea deal. "As soon as I heard what was expected of me, I told them, 'No way,' " she said.

Shock and awe

Often, when otherwise law-abiding citizens get caught up in violent protests in this country, prosecutors roll out something called a deferred prosecution agreement. Essentially, it is an agreement that says if defendants stay out of trouble, and perhaps pay a fine, prosecutors will give them a pass. That helps move cases along.

Four defense attorneys interviewed by NPR said that they were told by federal prosecutors that deferred prosecution agreements for Jan. 6 defendants were a nonstarter, even for the lowest-level charges. Justice officials, they said, told prosecutors working the cases that they were not authorized to offer them.

And that's odd, Henry Fasoldt, Ianni's attorney, told NPR, because even people arrested over violence during last summer's protests against systemic racism and police brutality managed to get those kinds of deals.

Americans watched the Capitol riot unfold on TV or the internet.
Alex Edelman / AFP via Getty Images

"That's really interesting to me," Fasoldt said. "Even people who were charged with violent crimes in Oregon got deferred prosecution agreements. None of those deals are being offered to Capitol rioters, even those with nonviolent misdemeanor crimes. The discrepancy doesn't make any sense to me."

Others said that there is, in fact, a big difference: The violent mob that stormed the Capitol on Jan. 6 threatened hundreds of lawmakers, former Vice President Mike Pence and current Vice President Harris.

Fasoldt said people such as Ianni shouldn't be charged as part of a mob; they're individuals. And their cases should be treated that way.

Juliette Kayyem, a former assistant secretary at the Department of Homeland Security in the Obama administration, said the Justice Department has decided to play hardball with Jan. 6 defendants — hoping to prevent future attacks. It has opted for a legal strategy in the mold of shock and awe: Arrest everyone, charge everyone.

"You start with the FBI and the investigations that are going on, and you keep them coming," she said. "And every jurisdiction has these cases, and if I sound harsh, good, because this was an attempt to undermine a valid American election."

National Guard troops stand behind shields as they clear a street from protesters outside the U.S. Capitol on Jan. 6.
Roberto Schmidt / AFP via Getty Images

The Justice Department announced in early July that the arrests and charges aren't over. It expected to round up hundreds more people in the coming months.

Prosecutors and defense attorneys NPR talked to agreed about one thing: The best way for the nation to understand what took place Jan. 6 is to present evidence in court that shows what happened. Collectively, America has yet to decide whether Jan. 6 was a protest that went off the rails or a calculated plan to launch a coup. A full hearing may help provide a more satisfying answer.

Ianni's next hearing is scheduled for Wednesday.

Copyright 2021 NPR. To see more, visit https://www.npr.org.

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)") Transcript provided by NPR, Copyright NPR.