Two years on, the legacy of January 6, 2021, is reflected in the ongoing saga around the protesters, agitators, and rioters who gathered at the U.S. Capitol: Some are in prison, and some still await trial, while others have just recently been arrested. Whatever one thinks of the events at the Capitol, the judicial process has been wildly inconsistent in its application of the law to those involved. The pretrial detention of certain defendants has been inhumane. The long periods of solitary confinement for even nonviolent offenders led Democratic Sen. Elizabeth Warren to believe that isolation was being used to punish people before they had been convicted of anything, or to “break them so that they will cooperate.” Hundreds of other defendants remain tied up in legal limbo.
Perhaps it’s no surprise that the criminal justice system seems to be playing by a special set of rules for the January 6 defendants given the way that day has been described. President Biden has referred to those involved as “insurrectionists who placed a dagger to the throat of our democracy” and last year called it the “worst attack on our democracy since the Civil War.” Not to be outdone, Vice President Kamala Harris compared January 6 to both Pearl Harbor and 9/11.
Biden and Harris can’t possibly believe that a riot in which only one person died by violence—that was Trump supporter Ashli Babbitt who was shot by a Capitol police officer—is comparable to some of the bloodiest calamities in American history. The over-the-top language, which has been repeated by countless other politicians and pundits, places the event and the people who participated in it in a special category outside the normal standards of the law.
According to the latest Department of Justice update, published on January 4, 2023, 950 people have been arrested for their roles in the events at the Capitol. The agency reports that more than 284 defendants “have been charged with assaulting, resisting, or impeding officers or employees, including approximately 99 individuals who have been charged with using a deadly or dangerous weapon or causing serious bodily injury to an officer.” Of the 950 people arrested, “approximately 860 defendants have been charged with entering or remaining in a restricted federal building or grounds. Of those, 91 defendants have been charged with entering a restricted area with a dangerous or deadly weapon.” 484 defendants have pleaded guilty, although only 119 to felonies and 351 defendants have been sentenced to date, including 192 to jail time.
Many of those arrested for their activity on January 6 were charged with and convicted of violent, inexcusable crimes, like assaulting Capitol police officers. Others, however, appear to have been swept up in overly aggressive charges and sentences, and are now lingering in legal limbo. Among the hundreds of people arrested and imprisoned since that day, these are the stories of just a few of those currently incarcerated.
Jacob Anthony Chansley:
Otherwise known as the QAnon Shaman, Chansley was one of the first into the Capitol on January 6, wearing red, white, and blue face paint, and an absurd fur Viking headdress with horns. According to the government’s case against Chansley, prior to January 6, he “spread the type of false information and hateful rhetoric that led thousands of rioters to descend on the U.S. Capitol.” On the day in question, Chansley entered the Capitol through a broken door and subsequently challenged a Capitol police officer “to let them pass, ultimately using his bullhorn to rile up the crowd and demand that lawmakers be brought out,” according to the description of Chansley’s actions provided by the state. “At approximately 2:52 p.m. the defendant entered the Gallery of the Senate alone. The defendant then proceeded to scream obscenities in the Gallery, including ‘time’s up motherfuckers.’” In his most damning act, Chansley then stood at the Senate dais and wrote a note for Vice President Mike Pence, saying, “It’s only a matter of time. Justice is coming!”
Eight minutes later, Chansley was escorted from the building. He’d been inside for one hour. The very next day, he called the FBI to “voluntarily speak with law enforcement,” admitting to his behavior, and turned himself in on January 9 at the request of said authorities. Initially charged with “Civil Disorder,” “Obstruction of an Official Proceeding,” “Entering and Remaining in a Restricted Building,” “Disorderly and Disruptive Conduct in a Restricted Building,” “Violent Entry and Disorderly Conduct in a Capitol Building,” and “Parading, Demonstrating, or Picketing in a Capitol Building,” Chansley pled guilty only to the second count—“Obstruction of an Official Proceeding.” Despite cooperating with law enforcement, having no criminal record, not being charged with any violent crimes, and being diagnosed by prison psychologists with multiple mental disorders including schizophrenia, Chansley spent 317 days in solitary confinement.
The government’s sentencing memorandum leans heavily on Chansley’s symbolic value in pushing for a strong sentence. “Defendant Chansley’s now-famous criminal acts have made him the public face of the Capitol riot,” the document states. “The peaceful transition of power in our nation, was disrupted by a mob of thousands on January 6, 2021. And this defendant was, quite literally, their flagbearer.” Chansley was also labeled a domestic terrorist by Assistant U.S. Attorney Kimberly Paschall who cited “the need to deter others especially in cases of domestic terrorism” in the government’s sentencing memo.
Chansley was sentenced on Nov. 17, 2021, to 41 months at a prison near his family in Arizona, followed by three years’ probation, a mandatory DNA sample to be given to his probation officer, and $2,000 restitution.
On January 6, Matthew Bledsoe entered the Capitol with the crowd, according to details provided by the U.S. Attorney’s Office, shouting, “we in this bitch! In the Capitol! This is our house! We pay for this shit! Where’s those pieces of shit at?” Bledsoe “paraded around with a Trump flag.” Bledsoe ended up climbing a statue of Gerald Ford to put the Trump flag in his arms. He “wandered … at a leisurely pace” and “circled the House Chamber” before Congress members had been able to evacuate. After 22 minutes, Bledsoe left. Afterward he texted a friend it was “wild but fun” and that he had “stormed the capital.”
Bledsoe and counsel opted for a jury trial, in which he was charged with five counts, identical to Chansley’s. He was found guilty of all five charges.
In the sentencing memorandum, the state asserts that it is “heavily in favor of a significant term of incarceration.” Bledsoe’s intent, the state argues, along with the other participants, was to “have their voices heard.” But an even stronger consideration for the sentencing recommendation comes from Bledsoe’s behavior after walking around inside the Capitol. At some point after leaving the Capitol on the 6th or on the 7th, Bledsoe posted a photo of cowering lawmakers inside the House Gallery with the caption, “How corrupt politicians should feel.” According to the government, this demonstrates, “Bledsoe has not exhibited true remorse and contrition for his participation in the darkest day our democracy has known.”
Bledsoe was sentenced to 48 months in jail, followed by a 36-month probation.
Katherine Staveley Schwab:
In the complaint brought against Texas realtor Katie Schwab, the government outlines that prior to leaving for D.C. she and her group discussed bringing guns. “As much as I want to avoid it,” she messaged her boyfriend and co-defendant Jason Lee Hyland, “I also want to stand my ground and defend myself and my rights against those fascist groups.” On the day of, Schwab and her companions went to the “Stop the Steal” rally and then to the Capitol. The prosecutors note that Schwab “strode eagerly ahead of the others.” But soon the group grew tired of walking so they decided to head back to the hotel and watch from there. After seeing on television that the Capitol had been breached, the group decided to go back, ultimately “pushing past Capitol police officers in the doorway who were attempting to block entry.” After walking around the building for seven minutes, Schwab was escorted out by Capitol police. Then, she remained outside for about an hour, “urging rioters to resist police officers’ attempts to disperse the crowd.” She yelled, “Stand your ground!” Later, she and a friend berated officers, referring to one repeatedly as a “fuckin’ pussy.” She also “threw and kicked press equipment” and egged on other protesters saying, “Fuck You, Associated Press.”
Due to her behavior, Schwab was charged with “Knowingly Entering or Remaining in a Restricted Building or Grounds Without Lawful Authority and Disorderly Conduct on Capitol Grounds.” Schwab pled guilty to one count of “intent to impede or disrupt the orderly conduct of government.” She was sentenced on Dec. 9, 2022, to 45 days in jail.
In its sentencing memorandum, the prosecution relies on comments Schwab made prior to leaving for D.C. about expecting violence, but those remarks were clearly made in the context of expecting left-wing counterprotesters, rather than federal agents. Nonetheless, prosecutors argued that “she even contemplated breaking the law to prepare for the violence she predicted by bringing a concealed firearm to the District of Columbia.” She contemplated bringing a weapon, but did not do so.
Here’s a story of a similar offender who is not currently incarcerated. It’s instructive. Jenny Cudd, described by her lawyer Marina Medvin as “a 37 year old flower shop owner with a clean record,” wore a bulletproof hoodie sweatshirt to the Capitol on January 6th. She had posted a video the night before saying she was ready for a revolution “if that’s what it takes”, and at 1:30 PM on January 6th posted, “we are charging the capital [sic].” She entered the Capitol at 2:35 PM and left at 2:54. Later, she posted a Facebook video that seems to be the basis for the state’s case against her. In the video, Cudd says, “When Pence betrayed us is when we decided to storm the Capitol”; “We just pushed and pushed and pushed, ok?”; “We did break down Nancy Pelosi’s office door and somebody stole her gavel and took a picture sitting in the chair flipping off the camera”; “I’m proud of everything I was a part of today.”
On the basis of her behavior and words, the state charged her with the seemingly most common charges, two counts of “Entering a Restricted Building or Grounds” and two counts of “Violent Entry or Disorderly Conduct.” She was ultimately offered a plea deal on the same charge as Schwab. The state recommended 75 days of incarceration to deter her from participating in future, similar actions. Unlike the similar case of Schwab, who spent 45 days in prison, Cudd received only two months probation for her participation. Why?
Perhaps it has something to do with the brief filed by her attorney, Medvin, requesting a lenient sentence. In it Medvin lays out in detail what she illustrates as the hypocrisy of the government’s approach to punishing (or not punishing) protesters opposing the nomination of Justice Brett Kavanaugh in 2018. Protesters entering the Capitol were charged under local D.C. statutes as opposed to federal ones.
Medvin cites a tweet from the Women’s March Twitter account during that protest. “Hundreds of people are being trained for today’s #CancelKavanaugh action every 30 minutes this morning. We’re going to flood the Capitol.” Crisis Magazine tweeted later that day: “@womensmarch just took the Capitol. Women, survivors, and allies walked straight past the police, climbed over barricades, and sat down on the Capitol steps.” Others did make it inside the building, into the gallery, disrupting Senate proceedings. They were charged with “Crowding, Obstructing, or Incommoding,” under the local D.C. code.
Medvin points out that only one of the Kavanaugh protesters was charged under federal statutes and that person was ultimately not prosecuted. But even more importantly, in court papers from that case, it states, “Notably, no other person charged with protest and/or disruptive-type behavior at the U.S. Capitol Grounds has been previously charged in federal court for the District of Columbia.”
Despite the obvious differences between the two events, the disparity of how nonviolent offenders were treated in 2018 versus 2021—to say nothing of comparisons with the thousands of people arrested over the summer of George Floyd protests—is worth noting. It is also worth noting the fact that the protracted legal proceedings, potentially harsh sentences, and absolute public shame brought on by the DOJ’s unprecedented campaign against the Americans who were nonviolent trespassers at the Capitol on January 6 has had potentially irreversible consequences both for the American legal system and for the individuals involved.
Bernie Sanders-then-Trump supporter Matthew Perna was inside the Capitol for about 20 minutes on January 6. He chanted “U.S.A.!” with the crowd and later posted a video in which he stated, “it’s not over, trust me. The purpose of today was to expose Pence as a traitor.” Charged with the same relatively benign charges that the DOJ applied to Katherine Schwab and Jenny Cudd, Perna ultimately pled guilty to all of them. But while waiting for his sentence to come down—it was delayed by the U.S. attorney—Perna committed suicide. Before that, his father wrote to the judge in a plea for compassion, stating that after Matthew’s participation in the riots at the Capitol was publicized in local newspapers, “We were no longer comfortable going out in public, something I never in my life thought I would experience in the town where our family was respected and well known. This past year cost Matthew his income, the love of his life, his friendships, and his standing in the community.”
The investigations are far from over. The FBI says it has ID’d hundreds of suspects who have not yet been arrested. In December alone, the DOJ arrested 10 nonviolent offenders. They have the money to find many, many more. The U.S. Attorney’s Office is getting an additional $212.1 million in the new budget in part to “further support prosecutions related to the Jan. 6 attack on the Capitol and domestic terrorism cases.” And the FBI is getting a boost of $569.6 million over last year, “including for efforts to investigate extremist violence and domestic terrorism.”
Clayton Fox writes Tablet’s daily newsletter, The Scroll, alongside Sean Cooper and Jacob Siegel. He has written independently for Tablet, Real Clear Investigations, Brownstone Institute, American Theatre magazine, Los Angeles Magazine and The American Conservative. Follow him on Twitter @clayfoxwriter