Jan. 6 Hearings Point Finger at Donald Trump. But Federal Prosecutors Haven’t Gone That Far.

The Justice Department's handling of January 6 contrasts sharply with prosecutions of racial justice protesters and international extremists.

Photo illustration: Elise Swain/The Intercept; Photos: Getty Images

Last week, the House committee investigating the January 6, 2021, siege of the Capitol began public hearings to disclose its findings. During the hearings, the committee alleged that former President Donald Trump led and encouraged the attack on the Capitol in an effort to overturn the 2020 election results. This week on Intercepted, investigative reporter Trevor Aaronson is joined by Margot Williams, research editor for The Intercept, and Michael Loadenthal, founder and executive director of the Prosecution Project, to discuss the ongoing arrests and prosecutions of those linked to the January 6 assault. Aaronson, Williams, and Loadenthal discuss their findings from the prosecutions, along with how the legal actions against Capitol rioters contrast with people arrested during the racial justice demonstrations in 2020 and those arrested for terror-related crimes.


[Intercepted theme song.]

Jeremy Scahill: This is Intercepted

Trevor Aaronson: I’m Trevor Aaronson, a contributing writer at The Intercept.

[Steady, upbeat percussive rhythm plays.]

TA: Nearly 18 months ago, on January 6, 2021, an angry, violent mob of Donald Trump’s supporters stormed the U.S. Capitol in an effort to stop the peaceful transfer of power to Joe Biden, the clear winner of the 2020 presidential election. 

[Clips of shouting, sirens, pounding, chants of “USA! USA! USA!” as the rioters come together.]

President Donald J. Trump: I hope Mike is going to do the right thing. I hope so. Because if Mike Pence does the right thing, we win the election.

Rioter: Whatever it takes. I’ll lay my life down if it takes. 

Rioter: Absolutely. That’s why we showed up today.

TA: The rioters attacked police officers defending the U.S. Capitol. A Capitol Police Officer died on January 7, the day after the mob attacked him. Two other police officers who responded to the riot committed suicide in the days following. Four Trump supporters also died during the melee at the Capitol.

It was … an insurrection. I saw it. You saw it. We all saw it live on television. But Trump and his supporters have tried to convince us since then that we can’t believe our lying eyes. Trump has tried to bend reality to his will claiming, absurdly, that the crowd we all saw live on our screens wasn’t full of violence — but instead, full of love.

DJT: Boy, there was a lot of love. I’ve heard that from everybody. Many, many people have told me. That was a loving crowd. 

[Low humming music.]

TA: Tucker Carlson, who hosts the top-rated show on Fox News, has promoted a ridiculous conspiracy theory that January 6 was a false-flag attack secretly organized by Trump’s shadowy enemies inside the FBI.

Tucker Carlson: Strangely, some of the key people who participated in January 6 have not been charged. Look at the document. The government calls those people unindicted co-conspirators. What does that mean? Well, it means that in potentially every single case they were FBI operatives.

TA: To be clear, the government doesn’t call FBI agents or informants unindicted co-conspirators in court filings. And there’s no evidence — zero — to support this FBI-did-it theory.

In our very divided America, we now can’t agree about what happened on January 6. A Pew Research Center poll from February found that more than half of all Republicans believe Trump had no responsibility for the violence at the Capitol.

What’s unclear as I record this is whether public hearings about January 6 can break through in such a polarized America, as the Watergate hearings did nearly 50 years ago, ultimately shifting public opinion against President Richard Nixon.

John Dean: I began by telling the president that there was a cancer growing on the presidency. And if the cancer was not removed, the president himself would be killed by it. 

TA: Last week, the House Select Committee to Investigate the January 6 Attack began its public hearings to interview witnesses and release the results of its nearly year-long investigation. 

The first hearing was held on June 9, live on television, in primetime.

Rep. Bennie Thompson: I’m Bennie Thompson, chairman of the January 6 2021 committee. 

I was born, raised, and still live in Bolton, Mississippi, a town with a population of 521, which is midway between Jackson and Vicksburg, Mississippi, and the Mississippi River.

I’m from a part of the country where people justify the actions of slavery, the Ku Klux Klan, and lynching. I’m reminded of that dark history as I hear voices today try and justify the actions of the insurrectionists on January 6, 2021. 

TA: Every major American news channel aired the first hearing live, with the notable exception of Fox News, whose evening shows have shamelessly promoted the preposterous lie that the 2020 election was stolen from Trump.

The members of the January 6 committee — which includes two Republicans, Rep. Liz Cheney and Rep. Adam Kinzinger — have made it clear that they intend to present evidence that they believe shows that January 6 was a violent attempted coup organized and led by President Trump. 

Here’s Representative Cheney during the first hearing:

Rep. Liz Cheney: As you will see in the hearings to come, President Trump believed his supporters at the Capitol — and I quote — “were doing what they should be doing.” This is what he told his staff as they pleaded with him to call off the mob, to instruct his supporters to leave.

The goal of the House Select Committee appears to be to make a public case that Trump is a would-be autocrat who’s personally — and perhaps criminally — responsible for unleashing a violent mob whose aim was to overturn the results of the 2020 election.

Using testimony from former Trump officials and campaign staff, the January 6 committee revealed how Trump had been told, in no uncertain terms, that there wasn’t significant evidence to support claims of voter fraud, including by his attorney general, Bill Barr.

Bill Barr: I told him that the stuff his people were shoveling out to the public was bullshit. I mean, that the claims of fraud were bullshit.

[Ominous music.]

TA: Yet the Trump campaign raised more than $250 million in donations by leveraging false claims of voter fraud, under the moniker the Official Election Defense Fund. But, as House investigators have revealed, there was no such fund. The money went into a political action committee Trump controlled.

Here’s California Rep. Zoe Lofgren, a member of the House Select Committee.

Rep. Zoe Lofgren: President Trump used the lies he told to raise millions of dollars from the American people. These fundraising schemes were also part of the effort to disseminate the false claims of election fraud.

TA: But happening in parallel to this House Select Committee probe is an investigation by the Justice Department — the largest in the department’s history. 

That investigation has happened as self-appointed internet sleuths, such as the organization Sedition Hunters, have taken it upon themselves to find and republish videos and photos from the Capitol riot and attempt to identify alleged rioters. These volunteers think they’re doing good, but they’re participating in a strange form of internet vigilantism that, in some ways, has shaped the Justice Department’s response to the Capitol riot.

So far, the Justice Department has charged more than 800 people with criminal charges for their alleged roles in the January 6 attack on the Capitol. Federal prosecutors appear to be grouping the defendants into two buckets.

The first includes Trump supporters who were there that day, appear to have been swept up in the hysteria and violence of the moment, and entered the U.S. Capitol spontaneously. Many of these defendants face only misdemeanor charges.

The second includes members of the Oath Keepers and the Proud Boys, two violent domestic extremist groups who support Trump. Recently, prosecutors have charged 16 members of these two groups with seditious conspiracy, alleging that they had planned their attacks on the Capitol as part of an organized effort to help Trump hold onto power.

Today on Intercepted, I’m joined by two people who have closely followed and tracked the January 6 prosecutions:

Margot Williams — my colleague here at The Intercept — and Michael Loadenthal, the executive director of The Prosecution Project, which tracks criminal prosecutions involving political violence.

As pundits have speculated endlessly on cable news about January 6 and its fallout, Williams and Loadenthal are among those you haven’t heard from yet. They are among the researchers at news organization, think tanks, and universities who have been keeping their heads down — collecting court records about the January 6 prosecutions, entering the information into databases, and trying to answer a question: What do the prosecutions tell us about what happened on January 6, and what can they tell us about how the Justice Department, one of our nation’s most important institutions, investigates and prosecutes a crime that, some argue, may lead back to Donald Trump?

I started by asking Margot to explain a bit about the databases she has been working on throughout her career, and how she’s been following the January 6 prosecutions:

Margot Williams: I have been working on databases for many years. I am the research editor at The Intercept. But before that, I was at The Washington Post and The New York Times, where I created The Guantánamo Docket database of the Guantánamo detainees. Starting in 2002, I started collecting names and then in 2007, I believe, it went up online at The New York Times, and it’s still there. 

At The Intercept, Trevor, you and I work together on the Trial and Terror database, which is also an ongoing database that’s downloadable of all the prosecutions since 9/11 in the War on Terror in the U.S. 

So it’s just natural for me when this event happened on January 6, and while I was watching, I immediately thought to start collecting the names of the people who would be arrested, later charged, tried, and sentenced. And I’ve been working with Michael on it. We share our data together. I’ve only seen him in Zoom a couple of times in my life, and we chat every day, multiple times. And my database at The Intercept is not public yet, because it’s a work in progress, but Michael’s is available to the public.

TA: Yeah, Michael, could you tell us how this database fits into your mission at The Prosecution Project?

Michael Loadenthal: Sure. 

So The Prosecution Project, just for a bit of background, began in 2017 as part of a, I guess you’d call it, an extracurricular engagement for, at the time, mainly undergraduate students at Miami University of Oxford, Ohio. And at the time, we were trying to kind of explain the discrepancy between two large criminal cases. One was the so-called J20 Case, which is the arrest of 200-plus anarchists and anti-fascists who were disrupting the inauguration of Donald Trump in Washington, D.C. and comparing those to a recent slate of white nationalist violent crimes, including a few murders. 

And so we were trying to kind of explain the sentencing discrepancies between the two of these. We started collecting data on political prosecutions, and received so much success from student engagement that we decided to continue it now five years later. 

And so generally The Prosecution Project seeks to collect data on any political violence, so we would define that as terrorism, extremism, hate crimes, bias crimes, and political protest. So any form of political violence which has been prosecuted in the United States since 1990 at the felony level, so that’s a rather large pool of cases. So we, like a funnel, suck in hundreds of cases a month, test those for whether or not they meet our inclusion criteria, and then code them on the basis of about 55 variables. Now, this is done with a core team of about 40 volunteers, many of whom are students, but not all of whom, and all of our work is verified, we independently code things and we could go into all the methodology stuff if folks are interested, but the Capitol cases fit into a growing portfolio we have of what I guess we would call event-driven datasets. 

So we have the wider dataset of nearly 10,000 cases in which we’re looking at, but within that wider pool, we have some event-driven datasets. So we have, as Margot said, a public dataset on the Capitol rioters, we have a public dataset on the summer 2020 George Floyd uprising arrests, and then the rest of our sub-datasets we provide on request to whomever. And we’ve provided those to everyone ranging from individual attorneys representing clients in our dataset, to the Department of Defense, to most mainstream large media outlets at this point, as well as a host of governmental and non-governmental bodies, social movement organizations, etc.

TA: What I’d like to ask both of you to start with is, you know, if we’re to take a kind of bird’s-eye view of the January 6 prosecution’s, we know that there are about 800 defendants. And so starting with you, Margot, what are some of the highlights that you see in this database so far?

MW: Not from the database, particularly, but from reading the charging documents and the statements of the defendants and the FBI agents who investigated the cases, I’m just amazed at the number of resources that the U.S. government has devoted to pursuing these people and that, to some extent, half of the cases just about are just misdemeanor charges, the others being the felony charges, and to the extent in which they pursued people on these minor charges. I mean, they did walk into the Capitol, and they did cause disruption and destruction, but many of the charges are misdemeanors, for which I believe my opinion is that if they had arrested these folks on that day, as they did with the J-20 people and sorted it out when they were all being held, it would be a much more effective and economic way of pursuing people who had done these deeds. 

Instead, they’re charging, after a year and a half, people just were arrested yesterday, in this case, they’ve been hunted down and chased down and interviewed and all kinds of stuff going on, which wouldn’t have been needed at all if they had just grabbed them in the building. So that’s what I’m noting, the number of misdemeanor cases, and also Michael had another in his data set, he also had the people who were arrested that day, just by the Metropolitan Police Department, I’m not even keeping track of those, they just arrested them and let them go, and that adds another 80 people to the case, and I don’t know what happened to those people, either. We haven’t been able to follow up on it, I don’t think at all. 

ML: Exactly. Yeah, I can speak to that from the kind of bird’s-eye view at present. And as Margot said, Margot, and I have been sharing court-related event data literally every day for the past year-plus. So, you know, there’s always a bit of a delay in us catching up to things. But as of today, as of right now, The Prosecution Project is tracking 829 federal cases, which includes three cases of defendants who are named, but seemingly never charged. So if you want to be real precise, we’re looking at 826 federal cases, and 80 non-federal cases, again, as Margot referenced, by the Metropolitan Police Department. 

So that’s, you know, a lot. We’re looking at quite a number of cases. Again, zooming out real broadly, looking at across the federal and non-federal cases, so looking across — what is that — 909 cases, we see that on average, people are about 40 years old, the exact median age that we’re showing in our data is 40.5. So you can say 40, you can say 41. Majoritively male: 773 men, 126 women, and nine people who, at least at this point, we can’t determine their gender. And then race — again, this is not going to be a super-surprise to anyone, but — it’s a majority white, we’re looking at 745 white defendants; 107 defendants whose race, at least at this point, we cannot identify because it’s not in the record and we have no photographic evidence of them; 27 individuals who are Latino; 11 individuals who are Black or African-American, and 7 individuals who are Asian. So, again, zoomed out, if we’re looking for the patterns, most of the things we’re tracking are federal cases involving 40-year-old white men.

TA: One of the things I’d like to talk about with both of you is this question of the disparity in treatment between the January 6 defendants and defendants in other types of prosecutions. And so Margot, as you mentioned earlier, you and I work on this database at The Intercept called Trial and Terror, where we track international terrorism prosecutions and, you know, federal prosecutions of people alleged to have literal or ideological connections to al Qaeda, ISIS, and other groups. And what we see in those is something very different than what we see in the January 6 cases. And this relates specifically to what you mentioned earlier, where we’re seeing a large number, if not half of the total, in January 6, being charged with misdemeanors, which is not at all a common charge and terrorism prosecutions. And what we’re also not seeing in the January 6 data compared to terrorism prosecutions are a common charge that prosecutors bring known as “making false statements” or otherwise known colloquially as lying to the FBI. 

And I was wondering what your thoughts are on this disparity and treatment, given that I think we might be seeing something very different if it was a group of alleged ISIS associates who stormed the Capitol, or maybe even a group of Black and brown Black Lives Matter demonstrators.

MW: Well, another difference that I see is that in the charges against the terrorists, the international terrorists, there are so many sting cases. And here there are no stings. And also, here, in the few cases that have gone to a conclusion, we see people who have actually had weapons with them, and weapons of mass destruction is one of the terrorism charges that could be brought, but it wasn’t in this case. So there are differences. 

I believe that, in these cases, the similarities are in the rounding up of people who seemingly have little connection to many other things. And that both have kind of charges that now, looking at our cases in the Trial and Terror, they would have been considered misdemeanors, except that the extra allegation that people were somehow involved with an overseas group, even though they didn’t go overseas, makes it a much tougher charge than being engaged with Oath Keepers or Proud Boys, although it looks like this week that Oath Keepers and Proud Boys, more prosecutions will be involved with belonging to those groups, even though they’re not known as terrorist groups. But, in the hearings, they started to make it sound like they’re similar to what would be called a terrorist group.

TA: Yeah. 

Similarly, Michael, I mean, are you seeing disparities in the January 6 prosecutions compared to your research on J20 or the summer of 2020 prosecutions?

ML: Yeah, I mean, the comparison between the Floyd prosecutions is, I think, apt, because they’re both somewhat constrained events. But they couldn’t have been prosecuted in different ways. The summer of 2020 Floyd cases really followed some pretty clear patterns of overcharging in an attempt to get plea bargains. We certainly had a lot of cases that were dropped, especially at the non-federal level, but even at the federal level. In the Floyd cases — and not in all cases, but in many cases — seemingly minor crimes, which were sort of saddled with a much larger political ongoing. So, for example, you’d have a statement of facts document or an affidavit, which would talk about all of the destruction given to the Portland courthouse, and then when you got to the actual actions of that particular defendant, it was relatively minor. So you had this kind of individual saddled with a much larger and, in a sense, scarier political context. Here, you have something different, in the Capitol cases where, as Margot said, about a half of the people are charged with relatively minor crimes, and will never expect to see the inside of a jail cell, let alone a prison sentence. So most of these people haven’t been sentenced yet, but I just did a quick calculation on our length-of-prison-sentence variable, and there are so many people that got no prison time that the mathematical average is zero at this point. [Laughs.] Because most people received no prison time. 

So I think that that’s certainly a major difference is that we have a handful of cases in which people have the potential of having multi-year sentences, whereas in the Floyd cases, if you look just at the summer ones, most of those were pretty steep charges. And again, a lot of them had been pled down. But I think the vigor, if I can say, through which the Department of Justice and the United States Attorney’s Office pursued those cases, seems to have been pretty high. 

And as Margot said, the kind of investigative complexity of some of the summer 2020 cases was really quite impressive. Whereas, in the Capitol cases, most of these things are a combination of monitoring people’s own social media, people being snitched on by their friends and relatives, which is by far the most common way people seem to have been caught, and simple geofencing of their phones and things like that. So the kind of broad-stroke, investigative approach of the Capitol cases, partially because everyone’s constrained in the same physical area, versus the deep-dive investigations of the summer 2020 cases stands out to me as a really odd kind of uneven allocation of resources.

TA: I mean, that gets at one of the interesting aspects of the Capitol riot, which is in many ways, it was perhaps the most-watched crime ever, in that all of these Americans and everyone around the world was watching this. But not only that, the people who allegedly stormed into the Capitol often provided much of the evidence against them, right? By recording themselves or being recorded by others. 

[Sounds of people talking.]

Rioter: We are in the halls of Congress. We don’t want war. But we are prepared to fight for our liberty.

TA: And so in some ways, this becomes this enormous forensic investigation, right, that these authorities have to take on? Is that what you’re finding in most of the prosecutions?

ML: Yeah, I mean, the evidentiary record, often provided in the FBI affidavits, most of the time rely on media that the defendants produce themselves, so their own text messages, their own Facebook posts, their own alt-tech platform usage. And then the FBI is often just surveilling that through open-source intelligence methods, or you know, and I don’t have a quantification of this, but I can tell you that in a lot of cases, the way people were identified from the BOLO lists, or from the please-help-us-ID-these-people lists is from their family and friends. And Margot can speak to this, it’s so common to read these evidentiary statements. And it says: So-and-so knew the defendant for two years as a co-worker, or at school, or at church, or whatever. And people are just being turned in en masse by their friends, family, and colleagues — which again, stands in pretty stark contrast to the way the Floyd summer 2020 cases have been investigated. A lot of that was much more of this typical kind of CSI-style forensic work. For example, I have not seen the word fingerprint in any of the Capitol cases. It doesn’t seem like that sort of police work was really done, because they had these other investigative tools like the geofence, and cellphone beacons, and WiFi beacons, and all the things because people are in the same area

TA: That so much of this material and evidence was in the public record, right, was on social media and elsewhere, it really allowed a lot of these kinds of vigilante groups investigating the January 6 Capitol riot to kind of engage in a big way, right? Like Sedition Hunters being an example, where they find videos online, repost them, and for people that they can’t name, unknown defendants, for example, they come up with cute nicknames for them based on their appearance. Like #BubbaTwoHat was a guy who had a hat on, and then, for some reason, another hat on top of it. 

And I have to admit that there’s a certain uneasiness that I feel about the kinds of vigilante investigations that have happened and perhaps the way it may have influenced how the Justice Department has handled these prosecutions. And I was curious what your thoughts are on that?

ML: Yes. I am very much uncomfortable by it. And I want to be really clear: The Prosecution Project uses open-source data to track how political violence is prosecuted in U.S. courts. We are in no way whatsoever involved with identifying defendants. 

I have, in my academic work over the past year, been thinking a lot about this question, writing a lot about this exact question. As many academics do, I have a paper about to come out about this exact question. So what I’m looking at are people who are identifying far-right individuals, what we would call anti-fascist intelligence folks, and people in involved with something like Sedition Hunters, which I would call crowd-sourced policing. I find it really exceptional and wildly uncomfortable, that kind of unaccountable, untrained, self-appointed folks have just begun identifying people on the internet, based on, oftentimes, not super-great evidence. We’ve seen misidentifications, we’ve seen just other other ways in which this was done. 

And for me, the larger point is that identifying someone on the Internet in that way does not make you accountable to a community. The difference between that and people who work to deplatform far-right people is that that’s done in conjunction with activists on the ground, and a community approach to keeping one’s community safe. And so I do think this kind of proliferation of Sedition Hunters-type things is really problematic for a variety of reasons, but one of the reasons is that it’s blurring this line between people who are trying to destabilize and deter far-right activity, and people who are basically doing free unpaid internships for the FBI. And I think if that’s what people want to do, that’s OK, but I think people need to be honest with themselves that that’s what they’re doing. They’re doing free work for the police. And if they think they’re doing something else, then they’re a bit delusional.

MW: Yeah, I also noticed that in the criminal complaint statements, so often the FBI just credits and uses the vigilante groups’ work. I mean, and it is true that there is some good work being done, but the FBI statements include those nicknames that were given by the vigilante groups. And it just seems very just weird that the FBI would use this as their evidence in the case and put it into the charging statements. It’s quite unusual. Because also, most of those people who are the Sedition Hunters are, for no reason, anonymous as well. And maybe we could make up some little names for them, too, like that are on their Twitter handles. But it’s more anonymous sourcing that is public. It’s a quandary in my mind of how to approach it, but it makes me really uncomfortable.

ML: I have to say that one of the footnotes, I mean, I would say untold stories, but we’re telling it at this moment, so maybe it’s not an untold story, but one of the untold stories of the Capitol riot is how so much of this mass data collection has occurred, or has been carried out by what we can call early-career professionals, or non-trained individuals, or students. So, for the case of The Prosecution Project, most of this data has been done by undergraduate students. In the case of GW’s program on extremism, who is doing a lot of the tracking too, that’s, again, student interns. The people doing Sedition Hunters, I imagine a lot of those are younger people or not necessarily well-trained individuals in intelligence. And so there is a bit of an untold story about through crowdsource policing, through platforms like The Prosecution Project who are tracking this, how much of the knowledge that we currently have about January 6 has come from these kinds of all-volunteer groups.

TA: I guess, to me, that raises this question of law enforcement and investigative resources for January 6. I mean, obviously, like any organization, the FBI and the Justice Department have a finite amount of resources and time and agents. And what’s happening, obviously, is that the Justice Department seems to be sending a clear message that there were two rough groups on January 6, right? They’re the ones who showed up and kind of acted more spontaneously, and perhaps were swept up in the moment, as people might say. And then there were other groups, as we’re beginning to know more about, such as the Oath Keepers and the Proud Boys that are alleged to have been involved in a kind of conspiracy that took planning and a very organized effort to attack the Capitol. And I guess I wonder to what degree these volunteer efforts to find people including mainly the more spontaneous actors, are putting pressure on federal law enforcement to use a lot of the resources that might otherwise be put to kind of piecing together the puzzle of this seditious conspiracy, but instead they’re running down somebody from Kentucky who stepped into the Capitol. And I wonder to what extent you have opinions on how that might be shaping the law enforcement response?

ML: I mean, I think, you know, programs like Sedition Hunters — and again, we’re giving them a lot of airtime, and they are one of them, but there are a lot of these projects that are tracking them, and we can talk about the differences between them. But one of the things they’re doing is identifying, even if they’re not naming, they’re identifying a large pool of individuals to identify. So they basically created a task list for law enforcement. And, again, I think historically, that’s relatively new, where people come up and they say: Hey, here’s 800 unknown individuals who committed this crime. And in a sense, it puts the pressure, then, on the FBI to identify those individuals. You know, I don’t know of any other case in history, where civilians came out and said: Here’s this giant pool of people that we’re looking to identify. So I do think that the proliferation of those sorts of platforms does put the pressure on law enforcement to then identify the people who were singled out. 

But I think there’s also another ethical gray area here, which is: Does showing up at a protest such as January 6 — and I would consider that a riot but is still a political act — to simply being in that presence mean that you’d end up on a website like Sedition Hunters? Again, there’s a low degree of accountability there. 

Different people have different levels of culpability, like you said. We have people who engaged in extreme violence, and we have people who did not. And I’m not sure that that distinction is properly made by crowdsourced policing efforts. And so I do think it’s putting some people on the FBI’s radar, who may otherwise not deserve to be there. And I do think it’s spreading law enforcement resources very wide. 

And again, there’s just so many different groups doing this from ones likes Sedition Hunters who have gotten a lot of press, and were kind of seen as more legitimate to I remember this early one — I don’t know if it still exists — called detrumpify.org, which was doing something very similar of crowdsourcing. And there was another one, the U.S. Capitol Attack Facial Recognition Project that was trying to do it using facial recognition software. So I think there’s a lot of these efforts going on and I do think they have to be having an aggregately negative effect on the police’s ability to focus their investigative work.

TA: In watching the recent January 6 committee hearing, one of the key things that the committee appears to be highlighting is that the Oath Keepers and the Proud Boys, two extremist groups that were supporting Trump, played a critical role in the Capitol riot. And we also know that obviously from federal prosecutors who have charged the leaders of both of these groups and some of their members with seditious conspiracy. The January 6 committee was particularly interested and focused on a meeting the night before between Enrique Tarrio, the head of the Proud Boys, and Stewart Rhodes, the head of the Oath Keepers in kind of framing this idea that there was perhaps some sort of conspiracy between them, or at least alliances of some sort going forward into January 6. 

At the same time, though, Liz Cheney, and the members of the committee also seem to be pointing directly at Donald Trump, saying Donald Trump was leading, and organizing, and basically was the mastermind of this conspiracy, this so-called attempted coup on January 6.

Rep. Liz Cheney: On this point, there is no room for debate. Those who invaded our capitol and battled law enforcement for hours, were motivated by what President Trump had told them: That the election was stolen, and that he was the rightful president.

TA: But that isn’t as far as the prosecutors have so far taken this case. And I was wondering your thoughts on the disparity between what we know in the criminal record and what the select committee seems to be suggesting so far in its hearings?

MW: Well, it seems to me that they may have, or are trying to convince the public, that they have some more information that is going to make that connection apparent. And I don’t think I’ve seen anything in the charging documents or any of the documents so far, even the most recent seditious conspiracy charges against the Proud Boys, that in any way connects that to government officials who are in office at the time.

ML: Yeah, I don’t think so as well. And, again, one of the patterns that I think is interesting is that if you would have asked me on January 6, before we had done any of the tracking, what percentage of the people who entered the building of the 800 or so people that entered the building, are part of an organized group, or kind of came with an affinity group or coordination, I would have thought a relatively large number. But we’re actually not seeing that accusation as much as I would have expected. 

I was just doing some quick calculations when Margot was talking but, at least in The Prosecution Project, as the record stands today, we’re only tracking 52 Proud boys, 32 Oath Keepers, and 15 Three Percenters — there’s a couple other small groups in there, there’s a couple members of Patriot Front and Aryan Nations and whatnot. But that’s less than 100, right? And that’s less than I would have expected. I would have expected a larger representation from organized unlawful paramilitaries or militias, from organized far-right hate groups. So that, to me, is surprising. And at this point, we know if prosecutors had evidence that these individuals were part of groups, they would have put that out by now. So I think it’s safe to say that the majority of people are not group affiliated, which, I think is a bit of a shock when you talk about the kind of larger conspiracy narrative. Certainly, it seems that there was coordination and conspiracy within those groups, so within the Three Percenters, within the Oath Keepers, within the Proud Boys, and coordination amongst those groups, but as far the kind of wider day’s events, there doesn’t appear to me at this point to be much coordination beyond those kind of three core groups, which is probably why those are the groups which are receiving seditious conspiracy charges. 

TA: Certainly this has been going on for awhile, but I think where it reached kind of a fever pitch was during the Mueller investigation, where you have a lot of people online and on Twitter reading the tea leaves and suggesting what’s going to happen next, and where this investigation leads. And the people doing that for January 6, some at least, you’ll hear kind of talk of how this is kind of a slow-moving investigation that, like any kind of investigation of organized crime, is flipping lower-level people in order to kind of move up the ladder and eventually get to the top, right? And perhaps what we’re seeing now with the Proud Boys and the Oath Keepers, and the seditious conspiracy charges, is not the end, but simply part of moving up that ladder. 

And I was wondering what your take on that is given your analysis of these cases?

ML: I mean, yeah, I think that makes sense. I think that some people, by the charging documents, are not going to be privy to any sort of useful information, right? There’s just a lot of people that clearly just walked in, wandered around, didn’t know anyone, and left. So I think getting some of those cases out of the way, flipping some lower-level defendants, I think is most likely the strategy — and is almost always the strategy. And so, you’ve already had some folks who have pled guilty to the seditious conspiracy charges, you already have Proud Boys — chapter, regional leaders — who have pled guilty. So I think that that’s part of the strategy, part of getting some of those dominoes to start falling. 

I have to assume that the hope is that it pushes pressure up the ladder to people like Tarrio or Rhodes, but we’re not going to know that for quite a bit of time. 

MW: Well, one thing, as far as the charges and the folks who have been convicted, for example — where five have been convicted at trial, one acquittal, that’s it — but those cases, for the most part involved what was the most brutal part of the takeover, which was we watched cops getting beaten and nearly killed, and cops have committed suicide thereafter. And I would have thought that — so far, there’s like five convicted of that. I assume that some of the guilty pleas are that. But that doesn’t seem to really be the focus of what the hearings are about. And I don’t think that those people who really did a violent crime on law enforcement officers, that doesn’t seem to be the focus of most of the investigation and criminal prosecution — and these were the ones brought to trial.

TA: Yeah. I may be guilty here of asking you to be pundits for a moment, but I’m curious what your take is on the likely effectiveness of the House Select Committee. Right now, we’re kind of living in this America where a good portion seems to believe that Donald Trump played a role in instigating the violence, another portion that believes he had really no responsibility for what happened. And, like everything divided in America, we’ve got these two competing narratives. And it appears that by hiring a television consultant, the House Select Committee is trying to package its committee hearings in a way that will have some currency among media bubbles, and in social media, and in our very divided culture. And I’m curious, your take, given the hearings so far, of how effective you think it will be, or has been?

ML: I mean, I think — again, I’ll take the kind of academic position — I think you’d first have to clarify what your goals are. I think if your goals are seeing Donald Trump in a prison cell, then it’s ineffective. Like, I don’t think that anyone believes that that’s where this is headed. I think if the goal is to create a somewhat transparent public repository of known findings and knowledge on the events of the day, I think it’s going to go well to meet that goal. 

I’ve submitted testimony; many people I know have submitted testimony; there’s thousands of experts who have been asked and have put their thoughts down on record about everything from the role of specific extremist groups, or technologies, or individuals, so unearthing this kind of subterranean knowledge and putting it all in one place to have a historical record about the day and the context, I think it’s gonna be very successful in that. If people want to see it as a way to incarcerate the former president, I think they’re foolish, because I don’t think our justice system is set up to accomplish that, nor do I think that’s really in the interest of a lot of people.

MW: Well, in my mind, the question comes up of why these hearings are in no way related to there being increased charges for domestic terrorism. Somehow, in my imagination, I kind of thought that’s what this was going to be about, because that was such a topic of discussion for so long, but I guess the House bill failed and that seems kind of off the table. So we’re still going to have this disparity of wacky charges for jihad people and no real domestic terrorism crimes being put into law. 

I do have one point. And it’s not broad, bird’s-eye-view; it’s really, really narrow. And it’s something I feel very strongly about, and that is making the court records that are public free. And we pay for those court records. And there is a group called the Free Law Project that is actively trying to do something about it by creating a tool that allows people to share the court records that they have downloaded from the federal court system. And it’s a stopgap kind of way, because it requires that one of us download it, and then it’s available for everyone. 

In this case, almost everything is available, because Seamus Hughes at, and Michael, and I, and I’m sure The New York Times and The Washington Post and USA Today, everyone that’s in the media and studying this are downloading these documents. And then if you use the tool called RECAP that comes from the Free Law Project, then it’s free. And it’s just an example of why it should be free. 

And I know that there are some changes taking place in the Administrative Office of the Courts to make the searching free, but then not the documents free. So I feel that it’s really important that this point is being made. And maybe it’s coming across now to people like: Oh, look, we had to pay for these documents that have actually been paid for because we pay taxes, and it’s a federal document. I’m very strongly in favor of changing those rules and supporting the Free Law Project.

ML: I would agree with that. I mean, The Prosecution Project couldn’t effectively function without the use of court records, and specifically through the use of RECAP. It really makes a lot of our work possible. That being said, we’ve filed multi-court exemptions, so we’re exempt from a lot of court fees. But even with those exemptions, we still, as a totally unfunded, volunteer project, spend thousands of dollars a year to access court records, which as a taxpaying American citizen I’ve already paid for. So it is always very frustrating that court records are resold to us to the tune of 10 cents a page and 10 cents a search. That is certainly a barrier to creating public knowledge and public scholarship about the way in which the federal court system operates. And there’s a public interest in us understanding how the federal court system operates. And so moving that legislation through and making PACER fee-less and making PACER free, I think should certainly be a priority of anyone who’s engaged in criminal justice, or public policy, or legal research in the United States. And the fact that it’s not, every time I explain how court records function in the United States to someone who doesn’t know, they’re kind of aghast. So yeah, anything we can do to make that more accessible, I think, is in the public interest.

TA: Yeah, I would agree. I mean, I tend to view it as an example of whatever revenue PACER and ECF bring to the government, it’s got to be largely inconsequential. And so the fees are mainly just a way to kind of keep a tighter lid on government information, right?

And so, as a journalist, I’ve been reporting on agencies like the FBI, and with the FOIA system being broken, one of the few areas that we have to kind of look into these agencies are things like court records by looking at the cases they bring. And to me it’s kind of humorous that they’re making you pay for these things, not so much because I don’t think they need the money to keep the system in place, they certainly don’t, it’s just that they want fewer and fewer people looking at these records.

[Contemplative piano music.]

TA: That was Margot Williams, my colleague here at The Intercept, and Michael Loadenthal, the executive director of The Prosecution Project.

[End credits music.]

TA: And that’s it for this episode of Intercepted. Follow us on Twitter @Intercepted and on Instagram @InterceptedPodcast.

Intercepted is a production of First Look Media and The Intercept. José Olivares is lead producer. Supervising producer is Laura Flynn. Betsy Reed is editor in chief of The Intercept. And Rick Kwan mixed our show. Our theme music, as always, was composed by DJ Spooky.

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Thanks so much.

Until next time, I’m Trevor Aaronson.

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