The FBI and Justice Department are reportedly holding internal debates on not charging some of the people who stormed the U.S. Capitol on Jan. 6. Hundreds of President Donald Trump's supporters rushed into the Capitol while Congress certified the 2020 election results, officially confirming President Joe Biden as the victor. The riot was ultimately unsuccessful, but the House of Representatives voted to impeach Trump for inciting the insurrection and more than 100 rioters have already been charged. Five people died from injuries sustained during the riot.
The debate between federal law enforcement agencies is in the "early stages," and no decisions have been made, multiple sources told The Washington Post Saturday. Justice Department officials already began an effort to identify and arrest as many people who illegally entered the Capitol, but there is an internal debate on whether or not it is practical to charge every single one of them. The Justice Department and FBI are also aware that their decision could have a major impact on their credibility, as the apparent lack of security and intelligence mistakes that led to the riot come under scrutiny.
Federal officials estimate that about 800 people stormed the Capitol that day, and the behavior varied wildly. Some people dressed for a military battle were seen in viral photos on social media. There was also vandalism throughout the building, but some people were simply walking through with the rioters. Sources told the Post that some federal officials argued that those who did not participate in violent activity and only illegally entered the building should not be charged. On the other side of that argument are prosecutors and agents who believe the Justice Department and FBI need to send a "forceful message" that political violence like this must be punished. Some are also worried about the weight charging so many people might put on the federal court system.
So far, the Justice Department has charged 135 people with crimes in or around the Capitol, and more are expected to face charges. The FBI has received over 200,000 tips from the public and has combed through news footage and police officer testimony. The bureau is also looking to find individuals and groups that may have played a role in planning the riot. The FBI already found links between extremist groups like the Proud Boys and Oath Keepers, sources told the Post. Prosecutors have considered charging anyone who planned violence against the government with seditious conspiracy, which comes with a prison sentence of up to 20 years if convicted. There is no timeline on the cases though, as investigators are still going through evidence.
Some defense attorneys for those facing charges have proposed using a "Trump defense," arguing that their clients believed Trump and others gave them permission to commit violence at the Capitol to stop the election certification. This might not stop the defendants from facing charges, but it could come into play during trials and at sentencing. Trump's upcoming impeachment trial in the Senate will also examine how responsible Trump was for spreading the fake election fraud conspiracy theory. "It’s not like a bunch of people gathered on their own and decided to do this, it’s not like a mob," one attorney representing a defendant facing charges related to the riot told the Post. "It’s people who were asked to come by the president encouraged to come by the president, and encouraged to do what they did by the president and a number of others."