Host Craig Willliams and former U.S. attorney Joyce White Vance discuss charging the Capitol rioters, newly appointed Attorney General Merrick Garland, and future charges against all involved.
Lawyer 2 Lawyer
Joyce White Vance is a Distinguished Professor of the Practice of Law at the University of Alabama...
J. Craig Williams is admitted to practice law in Iowa, California, Massachusetts, and Washington. Before attending law...
More than two months after the event, federal prosecutors continue to file charges against individuals involved in the January 6th U.S Capital riot. In his confirmation hearings, now confirmed U.S. Attorney General Merrick Garland stated that charging those involved in the Capitol Riot would be his #1 priority. “We begin with the people on the ground and we work our way up to those who were involved and further involved.” Currently, there are over 300 individuals charged from more than 40 states. At least 149 of those individuals have been freed pending trial after posting bail or agreeing to supervised release.
On Lawyer 2 Lawyer, host Craig Williams is joined by former U.S. Attorney, professor at the University of Alabama School of Law, and co-host of the new podcast #SistersInLaw, Joyce White Vance. Craig and Joyce discuss charging the Capitol rioters, and look ahead to how the recent confirmation of Merrick Garland will impact the Justice Department, the cases against those involved in the Capitol riot, and who Attorney General Garland means by those “further involved”.
Lawyer 2 Lawyer
Charging the Capitol Rioters, Attorney General Merrick Garland, and the Future of the Justice
Intro: There’s also a doctrine that can be used to prove a murder of a reckless heart of someone who’s so disdainful for the value of human life that they take actions that they know put people’s lives in danger and that’s a separate path towards proving murder. That would seem to be a really strong possibility here too given a lot of misconduct you know attacking someone with an American flag on a pole and beating them.
Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams. Bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.
Joyce White Vance: Thanks for having me. It’s nice to be with you.
Joyce White Vance: So this is an extraordinarily expansive investigation in large part because of the number of people that are involved. It’s probably the biggest caseload that an investigation has ever led to as the result of sort of one situation. We won’t call it one crime because there are obviously now a multiplicity of crimes being charged. So it’s a lot for the U.S. Attorney’s office to get its arms around. Fortunately, they’ve brought on someone who’s been the U.S. Attorney in the District of Columbia before and so Channing, who was the U.S. Attorney for part of the Obama Administration is there sort of leading this endeavor and will serve I think in in many ways as the person who secures resources and make sure that they’re surged to the right place.
Joyce White Vance: I think that that’s a tough question to answer. It’s to my way of thinking inexplicable that people were not arrested and we’ll have to i think wait to hear the official answer as to what happened. It looks like law enforcement folks were overwhelmed. They were trying to secure the physical safety of the building. I think it’s very likely that they lack the capacity to process a large number of arrests. It looks like communications were in disarray.
But that said, you lose a lot of evidence. When you let people just leave, you endanger the community when you just let people leave. So it’s difficult to understand how that could have happened. And I think that we’re likely entitled to an explanation in fairly short order.
Joyce White Vance: You know, I’ve looked and I haven’t seen a good hard estimate. I’ve seen hundreds. I’ve seen thousands. There are possibly better estimates of the number of people who are at the rally on the ellipse. And I would suspect that law enforcement folks have a good hard assessment on that. But this is a large number of people. You know, for two and a half hours, the assistant U.S. Attorney handling the case handling some of these detentions hearings has says that capitol police had to continue to battle this sort of onslaught for more than two hours.
Attorney’s office have to rely on? Obviously, the videos and the social media and tips from other people. Is it scant evidence that we have or is there really a plethora out there?
Joyce White Vance: So, we don’t know yet. We haven’t heard the government’s evidence. But their opportunities for investigations are very rich. Most of the crimes are captured on video. That’s an enormous help. There are a lot of available witnesses. There are good indications that many of the people who have been arrested are already cooperating. There will be a social media presence, emails, text messages and then of course verbal communications with family and friends at home. So, there is a lot of available information for the government and this is not an unknown kind of investigation, this is really the sort of investigation that goes on in any criminal case. But specifically, in cases that involve domestic terrorist incidents, there are very good paths for investigation and skilled prosecutors and investigators who know how to get that job done.
Joyce White Vance: Social media is a very rich venue for evidence in this area.
Joyce White Vance: Well, speaking about this specific case, obviously, I don’t know what the evidence is. But I will say that in any number of prosecutions, it can be very helpful to have a scorned girlfriend or ex-wife as one of your witnesses.
Joyce White Vance: A car dealer from Kentucky, right?
Joyce White Vance: So, you have to look at each individual case based on the evidence. And the way detention works is typically a defendant or someone who’s been charged will appear first in front of a district judge and then they’ll have a Right of De Novo Appeal to a district judge if they don’t like the ruling of the magistrate judge and that appears to be what happened here. The government can seek to detain a defendant arguing that they are either a flight risk or a danger to the community and the government has to prove that by a preponderance of the evidence. In other words, that it’s more likely or not.
Joyce White Vance: Sure, you can you can pursue both. You only have to prove one.
Joyce White Vance: Yeah, so, I think Judge Howell’s ruling was a little bit more nuanced. It looks like the government argued only that the defendant, Mr. Mullins, was a flight risk not a danger to the community and Judge Howell’s reaction was that there was insufficient evidence to prove that he was a flight risk. When you look a little bit more deeply into this situation, it looks like the government really faced a dilemma here because Mullins’ lawyer has made public statements arguing that far from being a danger and trying to attack police that instead what he was doing was he was telling the crowd don’t attack the police and trying to protect them.
So that obviously will be a defense that a number of these folks will raise. No, I wasn’t attacking. I was trying to help the police out as I was there with my thousand friends trying to storm the Capitol, right?
But in this case, the government I assume strategically chose not to enter into that issue too early and they likely believed that they had sufficient evidence to prove that he was a flight risk, unfortunately, for them, Judge Howell did not agree. So, here’s Mr. Mullins’ status now, he’s back home in Kentucky, he’s on house arrest, he’s permitted to leave his home for a very limited number of events. But he’s largely restricted to his home and if he were to violate the conditions of his release pending trial, the government would be able then to go back to the judge and argue that he should be returned to custody. So one suspects that they are keeping a good eye on him.
Joyce White Vance: So, without you know talking about that specific case because we don’t know for sure what motivated the judge. Often particularly in cases where the government doesn’t object to this sort of treatment of a defendant, it can be a signal that the defendant is cooperating with prosecutors and prosecutors believe that there is some benefit to a defendant having more lenient treatment. So that could possibly be what’s going on here.
Joyce White Vance: So, it’s early days in this investigation. There are a number of different reasons to charge people early before all of your investigation is complete. One is if they’re a danger to the community and you need to get them off the streets and, in that case, you charge whatever you have available right? It’s possible also that they wanted to convince some folks early on to cooperate with law enforcement and charging someone can get their attention. There are other reasons to charge. I expect that we will see a number of superseding indictments with more serious charges added in as this investigation progresses.
Joyce White Vance: So, I think not all of them. What occurred is extraordinarily serious. I don’t think anyone gets a pass or conduct that went beyond the bounds of peaceful first amendment advocacy and became criminal conduct. That really the most heinous crime because this wasn’t just an effort to hang out inside of the Capitol, this was an effort to prevent the peaceful transfer of power. This was an effort to keep congress from certifying the results of the election. Probably among the most serious types of crimes that you can commit against your government. But I think it’s hard to say that every single person who’s there should be charged. There may be some people who were minimal participants, who were taken along by family members who perhaps didn’t fully appreciate what was going on. There may be some people whose cooperation is more valuable in prosecuting those who are the most seriously responsible for this crime than tagging them with some of the less serious crimes. So, I think prosecutors will have to evaluate each individual case on its own merits. You know, the charging guidance that DOJ prosecutors have is generally to charge the most serious readily provable crimes in all cases. But prosecutors also need to inject a level of common-sense evaluation of whether the national interest is served by prosecutions and so there needs to be an important balancing that goes on here as in any case.
Joyce White Vance: So, this is an interesting academic debate. So the felony murder rule is a legal device that permits prosecutors to charge murder without having to prove that the defendant had a specific intent to kill the victim. Instead, let’s say that you’re charged with killing someone in the course of a burglary proving the underlying intent for the burglary will suffice to prove the intent for the murder. It’s a little bit confusing but if you think about it as a device that lets prosecutors prove all the elements of a burglary and then a death that occurred during the burglary and be able to charge the defendant without proving that the defendant intended to cause the death you’ve landed on felony murder, it’s actually a crime that we adopted from the Brits that’s where the concept came from. The British Legal System abandoned this notion of felony murder decades ago. But we still continue to use it both in many state systems and in the federal system.
Something important to know about felony murder, is that it’s only triggered by a specific number of crimes, a specific set of crimes, that are identified in the federal homicide statute and so it’s not just any crime, it has to be a specified crime and there’s been some conversation about whether any of the conduct involved in the insurrection would be a triggering crime leaving that aside for a minute because that’s a sort of a complicated issue of law that has to be decided individually for each specific case. I suspect that it’s possible that we could see felony murder charges but when you charge a malice murder, an intentional murder, you have to prove that the defendant actually intended the outcome, intended the death and that would seem to me to be the most compelling type of case that prosecutors here can bring.
And there is a lot of now not with these specific defendants but just the apocrypha that we’ve read online and in the news is a lot of animus directed towards law enforcement and specific talk about killing police officers. So, for these defendants, the most important thing for investigators and prosecutors to do would be to try to develop that evidence first and only consider felony murder as a fallback position.
Joyce White Vance: Of course, there’s still the issue of causation. You then have to prove that that’s the cause of death, right? And that it landed on the head intentionally. But there’s also a doctrine that can be used to prove a murder of a reckless heart of someone who’s so disdainful for the value of human life that they take actions that they know put people’s lives in danger and that’s a separate path towards proving murder that would seem to be a really strong possibility here too given a lot of misconduct. You know attacking someone with an American flag on a pole and beating them.
Joyce White Vance: So, unless it’s evidence in a specific case, I’m not sure that it does play into criminal prosecutions but there is an important conversation that needs to be had among law enforcement officials about whether or not they’ve developed a permissive environment for white supremacist ideology. You know the new Secretary of Defense announced a 30-day stand down for folks in the military to speak with their troops and to have very direct explicit conversations about this sort of behavior. Now, we see that the proud boys were explicitly recruiting members of law enforcement with a focus on people who were former military and that many of these folks do have military and law enforcement backgrounds. It’s absolutely unacceptable for anyone in law enforcement who takes an oath to serve the public to adhere to an ideology that promotes white people at the expense of other people.
Law enforcement leaders across the country need to evaluate the people within their departments and agencies and they need to have a zero-tolerance policy for white supremacists.
We’re not having that conversation as directly as we should be and law enforcement leaders starting with Chris Wray, the director of the FBI need to be demanding that those conversations be had and that swift action to correct problems that exist be taken as well.
Joyce White Vance: Well, I’m not sure that I would call it investigation because investigation implies that you’re looking into criminal liability and now I’m talking more about internal agency accountability and so you know that would stem certainly the attorney general or the deputy attorney general could trigger that the heads of the DOJ Law Enforcement agencies, the FBI, DEA, ATF and the Marshall service all are direct reports to the deputy attorney general. For non-DOJ law enforcement entities in other agencies for instance in DHS and those secretaries can similarly compel that sort of an inward look into their operations and we also have issues across the country in state and local law enforcement and you know, Craig, one of the issues here is whether there’s the appetite to root out white supremacy or whether it has to some extent been tolerated and is still being tolerated.
Joyce White Vance: It can be very specific to the law enforcement leader and so for instance, in Alabama, where I live, sheriffs are elected, police chiefs tend to serve at the pleasure of the mayor of their jurisdiction, so that sets up two very different dynamics for how law enforcement leaders may view these issues.
Joyce White Vance: So, there has to be as a starting point a clear line drawn between legitimate exercise of first amendment activity, the rally at the ellipse and then considering whether any of the speakers at that rally or anyone who organized it or brought people to it had a hidden agenda which involved the conspiracy to launch an insurrection and of course, people that were involved in the insurrection and you know this is like any other criminal case, when you go out and you investigate a drug trafficking organization, you may start at the lowest level of the organization, people who are dealing on the street but they’re not your goal, your ultimate goal is to go to the head of the organization and cut it off so you can interdict the supply of drugs and the trafficking activity, right? This is no different and so the question that I — and I don’t think we need to really be shy about stating it, right? The question is how high up does responsibility and organizing authority for this go does it go to the President of the United States? Does it go to people around him? Does it go to folks like Roger Stone? We don’t know the answer to that. We need to know the answers whether they’re yes or no and that’s law enforcement’s job is to acquire those answers and to prosecute where appropriate. We are not a country that needs mob justice in any way shape or form so we should stay true to our rule of law principles and only prosecute people where there is sufficient evidence to obtain and sustain a conviction against them.
Joyce White Vance: It seems like we’re really far into this but January 6 is barely two months ago and there are hundreds of let’s just say subjects of this investigation. So, lots of work we don’t know what role everybody who was involved played and so you know you have a first amendment right in this country to express your political opinions even if they’re hateful but you can’t incite violence. That sort of where that line is and there’s a body of case law that that says that to be prosecuted for inciting violence it has to be speech that’s intended to directly in the moment trigger violence.
It can’t be speculative or two or three months down the road and so with this incident that you identify you know this horrific site we all saw sort of a mock gallows and people entering the Capitol you know yelling where’s Mike Pence? Hang Mike Pence. Prosecutors will have to look at the evidence and decide whether charges are warranted and if so, against which individuals.
Joyce White Vance: Well the justice department is the biggest law firm in the country. There are 94 U.S. Attorney’s offices located across the country in addition to the resources available in Maine justice in the criminal division and the national security division and the civil rights division. DOJ has had experience before where it has surged resources to either large cases or significant matters that took in a lot of personnel. There are already reports that prosecutors from jurisdictions outside of the District of Columbia are handling some of these cases in their early stages and I would look to the attorney general and the deputy attorney general as well as the U.S. Attorney, the acting U.S. Attorney and the District of Columbia to do a superb job of surging resources where they’re needed.
Joyce White Vance: So my evaluation as a prosecutor is it looks bad and it requires more investigation. Based on what’s publicly known there’s not enough to make a decision to prosecute. I would want to know about all of these folks. Their communications with each other, their communications with people around them. Did they ever you know express to anyone a specific intent to use an angry mob to keep congress from certifying the election? That’s what you’re looking for and then there’s some powerful evidence for investigators to parse involved in the former president’s reaction to these events at least one senator said that he had heard that the president appeared delighted. That he didn’t understand why people around him were upset that there was a mob attacking the Capitol. We all know that there was a lengthy delay in his taking any action to whether he was ultimately the one who did it or not to authorize the guard. It would be important to know what the interaction was.
You know you’ll recall that there was some shenanigans about who stayed in charge over at the defense department and who was in the room when decisions were made. There is a lot of fertile territory here for investigation. But I mean, I have to say, it doesn’t matter who we’re looking at whether it’s the former president who people have strong feelings about or anyone else, we are a rule of law country. We do not engage in mob justice. We hold people accountable for their actions consistent with our laws and our legal principles and we must do that here but we must also be a country that lives up to that aspiration when it comes to other defendants who maybe don’t have the megaphone that the former president has and the resources that the former president demonstrated over the four years of his presidency to fight off legal process we need to really rethink how we treat people in our criminal justice system and make sure that justice is a reality for everyone not just the wealthy and powerful.
Joyce White Vance: You know, it’s a really difficult sort of a conversation to have. There is a lot of animosity towards the former president. There are a lot of people who think he got away with way too much that he did a lot of bad things while he was in office and that he needs to be held accountable. Accountability is something that should happen in appropriate cases where there is evidence to support it and so if prosecutors develop evidence that let’s just say links the former president with a specific desire to rile up this mob and to send them off to the Capitol to do exactly what they did.
Then I think prosecutors need to unflinchingly if they believe that there is sufficient evidence to obtain and sustain a conviction, they need to do their jobs and prosecute without fear or favor. The risk that everyone is so concerned about is we see so many countries where there’s corruption, and kleptocracy where prosecuting your political enemies, I mean, all we — we don’t have to really look any further than rUssia right now where prosecuting your political enemies is not a fulfillment of a criminal justice system’s purpose but rather it becomes another powerful tool in the arsenal of a corrupt leader and that’s what we have to guard against. So, this is not a moment for mob justice, this is a moment for careful and thoughtful consideration of the evidence and the right course. I think the good news here, Craig, is that we have in the new Attorney General Merrick Garland someone who is superbly fine-tuned to make these decisions.
Joyce White Vance: Well, it would be tough to pick a jury in this case. We’re sort of seeing a little bit of that right now in Minneapolis where the lawyers are in the middle of striking a jury in the prosecution of former Police Officer Derek Chauvin, who’s charged with killing George Floyd and the problem is everybody in the jury venire is familiar with the death of Mr. Floyd. Many of them have seen videotape. The question that’s the key question there to ceding jurors is the same question that prosecutors would have to confront and defense lawyers and the judge in a theoretical trial of President Trump or anyone from inside of his orbit. The question is, can you set aside what you think you know and any biases that you might have and render a decision in this case based solely on the evidence that’s presented in court and the law as the judge instructs you on it and we’re seeing in the Chauvin case, jurors being seated who have convinced folks involved in the case that they can do that and we’re seeing jurors being excused either for cause or using preemptory challenges when it seems clear that they can’t set aside what they already know. So that’s no indictment of those jurors as individuals sometimes we have strong feelings that we can’t set aside, some people are remarkably able to and look, this is a concern that happens and surfaces in many cases and judges and lawyers are used to dealing with it but if there’s a prosecution of the former president, as you point out, those concerns would be raised on steroids.
Joyce White Vance: Well, thanks for that and this has been a fascinating conversation. I think something that we’re missing out on in this country is the opportunity for good civic education. We don’t do it in a sustained fashion anymore. I guess I’m dating myself saying you know that every year when I was growing up in elementary school, I got a heavy dose of it. Perhaps, the silver lining to what the country has been through is that we have conversations like this and we’re more thoughtful about our legal systems, our obligations as citizens and what the constitution means and requires of us. If people are interested in contacting me and talking about it more, they can find me through the podcast we
are #SistersInLaw the hashtag is part of our name. You can tweet at me on Twitter, I’m @Joyce White Vance or find me on the University of Alabama Law School’s website which will send you right to my externally facing email address.
Joyce White Vance: Thanks for having me.
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|Published:||March 19, 2021|
|Podcast:||Lawyer 2 Lawyer|
|Category:||News & Current Events|
Lawyer 2 Lawyer
Lawyer 2 Lawyer is a legal affairs podcast covering contemporary and relevant issues in the news with a legal perspective.