The criminal probe into the Jan. 6 insurrection has been described by the Justice Department as likely “one of the largest in American history.” But as the investigation matures, it’s becoming increasingly clear that many of the roughly 800 people who breached the nation’s Capitol may never face any legal consequences because they were allowed to simply walk away from the scene.
The US Capitol Police arrested only 14 people that day, while the District of Columbia’s Metropolitan Police Department arrested only 25 for unlawful entry. Since then, more than 300 people have been charged in federal court, and late last week the Justice Department said it expects to bring cases against “at least” 100 more.
The Justice Department could end up charging more people over time for their actions in storming the Capitol and delaying certification of the Electoral College. But that new benchmark — suggesting that some 400 people could be permanently beyond the reach of law enforcement — is the clearest measure yet of the lasting impact of the decision not to pursue widespread arrests as the riot was taking place.
A Capitol Police spokesperson did not return a request for comment about its approach on Jan. 6. In February, former chief Steven Sund testified before the Senate that the force was unprepared for the size and violence of the crowd, even though Trump supporters had been organizing on public platforms for weeks in advance.
An MPD spokesperson, asked for comment, referred to testimony from the department’s acting chief, Robert Contee, who said making arrests was at the bottom of MPD’s list of top priorities that day, after stopping rioters from entering the Capitol and removing people who made it inside; ensuring safe passage for members of Congress to reenter; and making sure Congress could resume the joint session.
That approach may have seemed practical at the moment, but it has had significant repercussions, including the costly burden of gathering evidence long after the fact and of tracking down hundreds of individuals scattered across the country or, in at least one case, overseas.
The FBI has not stated how many agents it has assigned to the investigation, but court records show that many working the cases have been pulled away from their normal — and important — areas of focus, such as white-collar crime, sex trafficking, or fraud. Since Jan. 6, agents and officers from more than a dozen federal and local law enforcement agencies have filed some 80,000 reports of witness interviews, reviewed more than 210,000 tips and 15,000 hours of surveillance footage, executed more than 900 search warrants in nearly every state, and extracted data from more than 1,600 phones.
Letting rioters go home also gave them an opportunity to obstruct justice. An analysis by BuzzFeed News found that more than three dozen people charged in the investigation had attempted to destroy evidence or scrub their social media profiles, although not always successfully. In court filings in dozens of cases, prosecutors have described efforts by defendants to scrub social media accounts, erase or destroy other evidence, hide out with family and friends, intimidate potential witnesses, and, in at least two cases, attempt to flee the country. And that’s just for the people who were actually caught.
“I don’t think anyone who believes in a functional democracy should applaud the Capitol insurrection slipping through the investigative cracks,” said Seth Stoughton, an associate professor specializing in criminology at the University of South Carolina School of Law who previously was an officer in the Tallahassee Police Department. “The question we have to ask is what resources were available and what discussions were had among leadership about simply arresting folks as they left?”
A spokesperson for the Justice Department did not respond to a request for comment. Asked how many people who entered the Capitol might avoid arrest, an FBI spokesperson referred to comments by Steven D’Antuono, Washington Field Office assistant director in charge, a week after the insurrection, when he said the bureau “will leave no stone unturned until we locate and apprehend anyone who participated in the violence.”
The spokesperson added that the FBI would “defer to the Capitol Police” on any questions about “their decision to not arrest individuals on January 6th.” A spokesperson for the US attorney’s office did not return a request for comment about the latest figures.
The US Capitol Police has conducted mass arrests during political protests in the past. In June 2018, it arrested some 600 people protesting former president Donald Trump’s immigration policy inside a Senate office building. Nearly 300 people were arrested in the same building a few months later during confirmation proceedings for US Supreme Court Justice Brett Kavanaugh. Those demonstrations were smaller than the Jan. 6 insurrection and peaceful.
On Jan. 20, 2017, the MPD surrounded and arrested more than 200 people protesting Trump’s inauguration — demonstrations that involved smashed storefront windows and confrontations with police — following a chase through downtown Washington.
But on Jan. 6, faced with a decidedly violent crowd, the two police departments chose to let rioters leave. Video images show scores of people, many kitted out in tactical gear, being allowed to stream out of the Capitol’s entryways — bottlenecks where, Stoughton suggested, they could have been detained, handcuffed, and processed. “At least you could videotape people as they walk out,” he said.
A spokesperson for Sen. Gary Peters, who as chair of the Homeland Security and Governmental Affairs Committee has been leading an inquiry into the events of Jan. 6, said carrying out arrests that day would have been difficult because police had not prepared for such a volatile situation. “Our investigation suggests that just wasn’t doable at the moment,” the spokesperson said.
Effectively making mass arrests, experts on policing say, would require officers to carry zip ties, set up staging areas, arrange transportation for detainees, and have a holding area to keep them while being processed. In other words, said David Harris, a professor specializing in policing at the University of Pittsburgh, precisely the kind of foresight and preparation the Capitol Police lacked that day.
“Everything tells me that if they’d had the numbers to make that many arrests, they would have been able to keep people out of the Capitol in the first place,” Harris said. The impact of that failure, he said, is potentially huge. “People will get away. Evidence will be destroyed. The damage was immediate, and it has only sunk deeper as time has gone on.“
The growing court docket provides a glimpse at the challenges of trying to piece together the case after the fact. BuzzFeed News’ analysis found that more than three dozen people charged in the investigation had attempted to destroy evidence or scrub their social media profiles. Agents serving search warrants found smashed phones in the home of one Pennsylvania woman; warrants served to Facebook turned up archives of accounts that had been deleted by their users. At least two defendants have been charged with threatening witnesses.
Guy Reffitt of Texas is charged not only with illegally going onto the Capitol grounds on Jan. 6, but also of threatening his family if they cooperated with law enforcement after he got home. He allegedly told his daughter, who is a minor, that he would “put a bullet through” her phone if she posted anything about him online; his wife relayed to the FBI that he’d told both children that if they turned him in they would be traitors and said “words to the effect of … ‘traitors get shot.’ ” Reffitt’s wife and daughter told the FBI they didn’t think he’d actually harm them.
Thomas Caldwell and Graydon Young, two participants in what prosecutors have alleged was a conspiracy to attack the Capitol orchestrated by members of the Oath Keepers and their associates, are charged with tampering with evidence, among other crimes. Prosecutors claim Caldwell deleted photographs from his Facebook account and “unsent” a Facebook message that included a video, and also that he encouraged two codefendants to “stash” the tactical gear they wore on Jan. 6 at his residence; Caldwell has denied that he tried to obstruct the investigation. Young, meanwhile, allegedly deleted his entire Facebook account.
After he was arrested in late January, Jeffrey Sabol of Colorado told police that he had “fried” his electronic devices in a microwave to destroy any content that might incriminate him, according to a Justice Department filing. Sabol also was planning to fly to Switzerland to avoid arrest — he later told law enforcement he thought it would “look natural” if he skied for a few days once he arrived — but grew paranoid when he arrived at the airport and saw police.
Another defendant, Isaac Sturgeon of Montana, flew to Kenya on Jan. 24, according to court documents. Early this month he was deported — court papers don’t provide more details about the circumstances behind that — and arrested upon arrival at John F. Kennedy International Airport, a full month after he had been indicted for participating in the riot.
Physical evidence also went missing. One alleged rioter, Thomas Sibick, accused of assaulting an MPD officer and stealing his badge and radio, changed his story multiple times during FBI interviews. He ultimately admitted taking both items home to Buffalo, New York, and burying the badge in his backyard. Before being arrested, he presented an agent a bag containing the mud-covered badge.
A laptop from House Speaker Nancy Pelosi’s office was allegedly stolen by a Pennsylvania woman, Riley Williams, but even though Williams has been arrested, the laptop was never recovered. Williams has denied the government’s allegation that she stole the laptop and planned to sell it to Russian security services.
And all that is from the 300 people who have already been charged. It’s impossible to know how many people will successfully avoid prosecution because they destroyed or hid evidence that could have been used against them, because they were fortunate to not be identified by tipsters or visible in security footage, or because they went into hiding in the US or abroad.
A day after Corinne Montoni, wearing a gray Trump sweatshirt, pushed her way into the Capitol, she traded messages with a friend about deleting her Facebook account and expressing skepticism about the government’s ability to track down everyone who was there that day, according to her charging papers.
“People are like. You’re going to jail…Ok so they’re gonna arrest the 1000 people that went in…Ok,” she allegedly wrote in a private Facebook message.
David Sklansky, a law professor at Stanford University specializing in policing, told BuzzFeed News that it’s not realistic — and may not even be desirable — to round up every potential perpetrator. Mass arrests, he noted, often lead to a surprisingly low rate of prosecution because arresting officers — tasked with processing hundreds of people at once — just don’t have the time to painstakingly assemble the kind of specific, individualized evidence that a team of FBI agents dedicated to charging a single suspect do.
“Perhaps paradoxically, when there are mass arrests, most of the people don’t end up in cases that go toward criminal trial,” said Sklansky, noting that procedural errors at the time of arrest, faulty documentation, or other technical problems often force law enforcement to dismiss charges against people rounded up en masse.
Several of the people arrested by the Capitol Police on Jan. 6 appear not to have been charged with crimes yet, and none of those arrested by the Metropolitan Police Department for unlawful entry appear on a rolling Justice Department list of Capitol breach cases.
Still, for many, the idea that so many people who stormed the nation’s Capitol could avoid arrest is hard to stomach. “I do think it’s a fundamental failure of government and our criminal justice system,” said Stoughton.
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