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Opinion: Merrick Garland, get tougher on the insurrectionists

Thus far, Garland’s actions have not matched his rhetoric. On Garland’s watch, the Justice Department has made an inexcusably weak showing in its January 6 prosecutions. Most recently, the Justice Department has offered lenient plea deals, many of them for misdemeanors — enabling several January 6 insurrectionists, including the individual who wore a “Camp Auschwitz” T-shirt to the attack, to reduce the charges against them.

Back when I was a first-year federal prosecutor, we’d get assigned every few months to do “misdemeanor duty.” We’d have to go over to the courthouse and process the pettiest of federal cases — smoking in a Veterans Administration hospital, low level theft of mail, a fistfight at a federal park, that kind of thing. While the statutory maximum technically is up to one year in prison, nobody got locked up for a misdemeanor. Usually, it was just a quick guilty plea, a fine and an admonition not to do it again.

Plainly, every Capitol insurrectionist committed misdemeanors, likely many of them — trespassing on federal property and disorderly conduct, for example. And many defendants have been charged with these low-level crimes.
But every January 6 defendant could also be charged with more serious felonies. For example, the Justice Department has charged some but not all defendants with the felony offense of obstruction of an official proceeding — specifically, the constitutionally mandated counting of electoral votes by Congress. And frankly the Justice Department should have charged every January 6 defendant who entered the Capitol with this crime — this is precisely why they stormed the building.
Even sedition, a serious felony, can be legally satisfied by a showing that a defendant sought “by force to seize, take, or possess any property of the United States contrary to the authority thereof.” We all saw the January 6 insurrectionists take over the Capitol building by force, and they certainly did not have permission to do so.
Indeed, a federal judge in Washington, DC, Beryl Howell, recently called out the Justice Department publicly for its lenient treatment of January 6 defendants.

“[D]oes the government have any concern given the factual predicate at issue here, of the defendant joining a mob, breaking into the Capitol building through a broken door, wandering through the Capitol building and stopping a constitutionally mandated duty of the Congress and terrorizing members of Congress, the vice president, who had to be evacuated?” Howell asked.

Howell added, “Does the government, in agreeing to the petty offense in this case, have any concern about deterrence?”

This is an important point. Deterrence — sending a message to the defendant and to the general public that conduct is unacceptable and will be punished seriously — is a legitimate goal of prosecutors and the court system alike. A spate of misdemeanor pleas achieves the opposite effect, signaling that the January 6 cases are petty or insignificant.

The Justice Department has an enormous January 6 caseload, with over 500 cases charged. But that’s no excuse to take the easy or expedient way out with misdemeanor pleas. These cases are too important, and the conduct of the January 6 insurrectionists was too serious.

Garland said all the right things before he took office. Now he needs to make good on them.

On to your questions

Craig (New Jersey): Can the government legally require students to be vaccinated before returning to school?

Almost certainly yes. In 1905, the US Supreme Court held that states can impose mandatory vaccination orders, given reasonable medical necessity. Then, in 1922, the court ruled specifically that state and local governments can require vaccinations for public school students.
More recently, a federal district court judge upheld Indiana University’s mandatory vaccination requirement. A three-judge court of appeals panel — all three appointed by Republican presidents — reached the same conclusion, upholding the Indiana University policy.
Then, Supreme Court Justice Amy Coney Barrett, who has responsibility over certain cases originating in that geographic region, declined to take the case, leaving the court of appeals ruling in place. At this point, any further legal challenge to public school vaccination requirements seems almost certain to fail in the courts.

David (California): Does the US Centers for Disease Control and Prevention have the legal power to extend the eviction moratorium based on the ongoing Covid pandemic?

Probably not. The US Supreme Court left the CDC’s original moratorium in place, but by a narrow 5-4 vote. Justice Brett Kavanaugh sided with Chief Justice Roberts and the three liberal justices (Stephen Breyer, Sonia Sotomayor and Elena Kagan) in the majority.

However, Kavanaugh plainly believed the CDC’s moratorium was illegal — he wrote that the CDC had “exceeded its existing statutory authority” — but he agreed to leave the original moratorium in place because it only had a few weeks left to run. Kavanaugh also made clear that he would not uphold an extension of the policy, unless Congress takes action first: “In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium,” he wrote.

A federal district court judge recently upheld the moratorium extension. But the judge, like Kavanaugh, found that the extension is likely unconstitutional; the judge, however, felt bound by the Supreme Court’s prior decision to keep the original moratorium in place. If and when this case reaches the Supreme Court again, count on Kavanaugh making good on his original word and flipping sides, which should result in the court striking down the extension.
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