Prosecuting Every Participant in the Capitol Riot Is a Mistake

Daniel Alan Baker was arrested by the FBI on January 15 for “threatening the use of violence.” A veteran of both the US military and the People’s Protection Units in Rojava, Baker is a committed leftist. He took seriously both the idea that the storming of the Capitol on January 6 was a near-miss “coup” and the FBI’s own warnings that similar events might take place at statehouses around the country on Inauguration Day. In online comments and a physical flyer, he called for armed volunteers to defend democracy Florida’s state capitol in Tallahassee.

I thought of Baker when I read a piece in The Nation urging Biden’s Justice Department to throw the book at all 800 or so people who “breached the Capitol” that day. Like Baker, Elie Mystal believes that what happened on January 6 was not just an ugly right-wing riot but an “attempted coup.”

“Either these people, all of them, are prosecuted,” he writes, “or the government is openly permissive of white violence.”

In the same spirit, Matt Yglesias wrote on the day the Capitol was stormed that everyone who can be identified from “the extensive available photography” should be prosecuted. USA Today has urged its readers to help in identifying individual members of the crowd. John Jay College professor Alan S. Wadnt has claimed that once a protester “enter[ed] the Capitol,” they were “really insurgents” and could be prosecuted as such.

Daniel Bessner and I have argued elsewhere that January 6 didn’t rise to the level of a coup attempt. There was never a chance of the rioters’ overthrowing the government, and it’s not even clear that most of them understood that to be their goal.

Whatever we call it, though, January 6 was horrifying. The flag of slaveholding rebels was carried through the halls of Congress. Some participants chanted about hanging the vice president. Others fought with the Capitol Police. One officer later died of his injuries.

I don’t doubt for a moment that the chorus of commentators who have suggested that everyone who was there be prosecuted are right to suggest that a predominantly nonwhite crowd storming the Capitol in a similar way would have been treated very differently. The double standard is maddening. But we should be wary of calls to resolve the discrepancy in the direction of harsher crackdowns.

Some of the protesters who entered the Capitol literally engaged in violence. They shouldn’t be let off the hook. Nor should lawmakers, who took an oath to defend the Constitution, escape accountability for their actions. But what about the hundreds who just wandered around taking selfies or chanting slogans?

The simplest argument for prosecuting them is that entering closed-off areas of the Capitol is a crime in itself—albeit an extremely minor one. Another, brought up among others by Congressman Ted Lieu, is that since officer Brian Sicknick died of his injuries after one protester hit him on the head with a fire extinguisher, the other 800 or so members of the crowd could be charged under the extraordinarily draconian “felony murder” statue that applies to anyone who played a part in a crime that led to someone being killed—even if the person being prosecuted had nothing to do with the killing and may not have even known it was happening.

I can certainly see where these commentators are coming from. It’s galling that the Capitol Police, who have no qualms about cracking down on Code Pink protesters or disabled veterans protesting Medicaid cuts, didn’t do more to stop the rioters. It would be outrageous if Daniel Alan Baker were prosecuted for what he said in his flyer while the hardcore reactionaries who actually brandished weapons in the Capitol were let off with a warning. Even so, I can’t help but thinking that the chorus of voices calling for everyone who entered the Capitol to be prosecuted “to the full extent of the law” are making a mistake.

In 2011, a crowd of pro-union protesters stormed the Wisconsin state capitol to protest Governor Scott Walker’s assault on collective-bargaining rights. I enthusiastically supported this “breaching” of a capitol building, and I’d imagine that the overwhelming majority of Nation readers felt the same way.

There’s no moral equivalence between a protest aimed at pressuring lawmakers to refuse to certify the results of a democratic election and one aimed at pressuring them to stop attacking the rights of workers. But the underlying “crime” is the same. I’m glad that there weren’t mass arrests of everyone who breached that capitol, and I’d be disturbed by a precedent that would be used to justify similar mass arrests after Wisconsin-like events in the future.

It’s true that there was no violence in Madison. But there certainly was last summer at CHAZ/CHOP. Everyone who aided in the illegal occupation of the Capitol Hill area in Seattle could have been charged with felony murder after autonomous “security forces” killed Antonio Mays Jr.

At a protest in 2019, right-wing hack Andy Ngo was doused with a milkshake and then punched in the head. He was hospitalized overnight with a brain hemorrhage. If he’d died of his injuries, and the crowd of protesters could have been proven to be engaged in some much milder act of illegality like trespassing on government property, would everyone have been locked up for felony murder even if they were nowhere near the attack on Ngo? I certainly hope not.

The left has rightly opposed mass incarceration. Calling for the harshest available legal theories to be used to lock up our enemies unnecessarily undermines this stance. It’s also a serious strategic error in an era when an expanded security state, encouraged by calls for a new domestic version of the War on Terror, realistically poses a greater threat to democratic rights than any mob of Capitol-storming MAGA dead-enders.

The prosecution of Daniel Alan Baker is a disturbing sign of things to come. So is the story recently told to me by Israeli leftist Bryan Atinsky, one of the founders of the website IndyMedia Israel. After the hate campaign leading up to the assassination of Prime Minister Yitzhak Rabin, Israeli liberals pushed for new laws broadening the definition of “incitement.” The same laws were used against Atinsky and his comrades after they published a cartoon insinuating that Ariel Sharon was a fascist.

Progressives and the carceral state are not natural allies. We shouldn’t give the bastards any ideas—or encouragement.

Read More

Ben Burgis