The QAnon Shaman Gets 41 Months in Prison. Good

J acob Chansley, the so-called QAnon Shaman, was sentenced on Wednesday to 41 months in federal prison — nearly three and a half years — for his role in the January 6 Capitol riot. Good. If anything, the judge went too easy on him. This is precisely the sort of exemplary punishment that riots demand and that is particularly necessary and in accordance with America’s Jacksonian tradition of example-making in responding to January 6.

There is a reason why I previously cited, as precedents, George Washington’s executing the leaders of a mutiny in 1781, Abraham Lincoln’s hanging of 38 leaders of a Sioux uprising in 1862, William Tecumseh Sherman’s March to the Sea to bring the horrors of the Civil War home to the Confederacy, Harry Truman’s dropping the atom bomb, and Calvin Coolidge’s and Ronald Reagan’s firing strikers against the public safety. All of those men understood the same basic calculus: Dramatic offenses require dramatic responses in order to deter a repetition.

The January 6 incursions into the Capitol were nothing if not a dramatic offense, one that humiliated the world’s oldest constitutional democracy in the full view of a watching world. Lots of people showed up, at Donald Trump’s request, for the January 6 “Stop the Steal” protest down the street from the Capitol. Most of them demonstrated peaceably and went home. A minority marched on the Capitol. Some of that crowd surged past the Capitol police, in some cases forcibly. A smaller number not only got inside, but they also triggered the memorable episodes of that day: terrorized public officials scurrying for cover, the Secret Service rushing the vice president to a secure location as a crowd chanted “Hang Mike Pence,” and violent confrontations that left Ashli Babbitt shot dead while pushing through a door at the head of a mob and multiple Capitol police officers injured. As of June, more than a dozen officers still had not returned to work after their injuries.

Three other protesters besides Babbitt died during the riot. Kevin Greeson, age 55, suffered a heart attack at the scene while talking to his wife on the phone. Benjamin Philips, age 50, also died of heart disease. Rosanne Boyland, 34, was seen being trampled by the mob, but the medical examiner found that her cause of death was accidental acute amphetamine intoxication. Capitol police officer Brian Sicknick, 42, who was pepper-sprayed during the riot, collapsed eight hours later and died of a pair of strokes, which the medical examiner did not attribute to the chemical spraying. Four of the Capitol cops who responded to the riot have since committed suicide. It remains speculative to connect any one of these deaths (besides Babbitt’s) directly to the riot, but it is hard to shrug away all of those deaths of people who entered the day active and in the prime of their lives as being totally coincidental to an extraordinarily stressful day full of mayhem and chaos.

By the standards of riots, January 6 was not remarkable. This was not, however, just any riot. Its location and its cause were unique, and most of all, it did something wholly without precedent in American history: It caused the certification of the peaceful, constitutional transfer of executive power — which was then being debated by a joint session of Congress— to be halted, and suspended for hours. This went well beyond somebody shouting momentarily from the gallery; there were serious questions for a time as to when the joint session could be continued. It affected the proceeding itself, albeit not the way the protesters wanted, as a number of shaken senators declined to pursue further objections when the session resumed. We court repetitions of this — and worse, because that is how slippery slopes work — if we do not make a vivid demonstration of our collective public will to ensure that nothing like this should ever happen again.

That does not mean prosecuting people indiscriminately. We have due process of law for a reason. Each of the more than 600 people arrested and more than 170 charged in connection with the Capitol riot is presumed innocent until proven (or pleading) guilty, just as is true of the people swept up in dragnets after any riot. Any time you have a whole bunch of people arrested for a large event, and there are feelings running high, there will be a risk of overzealous prosecutors charging some people who shouldn’t be charged, and overcharging others. We’ve already seen a number of examples of prosecutors having to walk back some of the initial claims made in these cases. That is how our adversarial system works.

Chansley, however, pleaded guilty, and given his prominence, he had to. He was not the worst offender on January 6, but he was unquestionably the most visible, and he chose to be the most visible. He showed up, as his own lawyer described him in his sentencing memo, “sporting his Shaman attire, replete with face paint, a tattoo-covered, naked upper torso, and a fur pelt. He was carrying a megaphone and a flag affixed to a makeshift flagpole topped with a misaligned, loose-fitting finial in the form of a spear.” The spear could be a weapon, although Chansley did not use it as one that day. He made his way into the Senate chamber and mounted the podium, where the vice president had stood until he was evacuated, shouting, “Where’s Pence? Show yourself!” He left Pence a note: “It’s only a matter of time. Justice is coming!” He called up more protesters with his bullhorn. After the riot, he told the press, “We won by sending a message to the senators and the congressmen, we won by sending a message to Pence, OK, that if they don’t do as it is their oath to do, if they don’t uphold the Constitution, then we will remove them from office one way or another.” He told our own Ryan Mills after the riot that he expected Trump to remain in office, and a week later, his lawyer was calling on Trump to pardon Chansley and other rioters.

Chansley pleaded guilty in early September to corruptly obstructing an official proceeding under 18 U.S.C. § 1512. He does not dispute that he was guilty and properly charged. As his attorney’s sentencing memo says, “He seeks not to be seen as a political prisoner. He seeks not to blame a former president for his actions. He seeks not to justify his actions with any explanation. He seeks solely to be held accountable.” Under the federal sentencing guidelines, Chansley faced a potential sentence of 41 to 51 months, far below the statutory maximum charge of 20 years (which almost nobody gets). He was given the minimum sentence within the range, perhaps in recognition that Chansley is not entirely in his right mind, but the defense’s effort to ask for an even lower sentence was rejected. He will get credit against that sentence for time already served in pretrial detention, will have to pay $2,000 for damage to the Capitol, and will face three further years of supervised release. Scott Fairlamb, another rioter who punched an MPD officer in the face and pleaded guilty, also got 41 months. These may not be the kind of long sentences we hand down to drug dealers, but they entail serious time in prison.

The sentence was handed down by Judge Royce Lamberth of the U.S. District Court for the District of D.C. The 78-year-old Lamberth, a Reagan appointee to the bench, has long been a blunt, opinionated, skeptical-of-government judge, whether slamming the Clinton administration in a series of rulings in the 1990s that were often quoted in the Wall Street Journal, to ripping the January 6 prosecutors over the conditions in which detainees are incarcerated (due to COVID protocols, Chansley has been in solitary confinement for months). Lamberth was impressed by Chansley’s contrition (set forth in a lengthy speech quoting Jesus, Gandhi, Clarence Thomas, and the Shawshank Redemption), but nonetheless, he said at the hearing, “He made himself the image of the riot, didn’t he? . . . For good or bad, he made himself the very image of this whole event.” He told Chansley, “What you did here was horrific, as you now concede. And obstructing the government as you did is the type of conduct that is so serious that I cannot justify a downward departure” from the guidelines’ sentencing range.

For all of that, there are diehard defenders of the “January 6 defendants are political prisoners” shtick who are upset at the sentence. Julie Kelly at American Greatness, perhaps the most vocal of those, goes even further and argues, preposterously, that Chansley should not even have been charged with the felony he pleaded guilty to, because “the government’s attempt to apply this vague law to defendants in the Capitol case is a stretch.” Here is her legal analysis:

There’s no indication the law pertains to a proceeding before Congress. Here’s the exact text from the statute prosecutors cite: “Whoever corruptly . . . otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.” The provision is part of the Sarbanes-Oxley Act, signed into law in 2002 as a congressional response to the Enron and WorldCom scandals. Corporate bad actors—not regular citizens protesting the actions of their elected officials in a public government building paid for by taxpayers—are the proper targets of that law. In his signing statement, President George W. Bush explicitly rebuked any intention to use the law against Americans. “To ensure that no infringement on the constitutional right to petition the Government for redress of grievances occurs in the enforcement of section 1512(c) . . . which among other things prohibits corruptly influencing any official proceeding, the executive branch shall construe the term ‘corruptly’ in section 1512(c)(2) as requiring proof of a criminal state of mind on the part of the defendant,” Bush said in July 2002.

I would not recommend taking legal advice from Julie Kelly. As it happens, the phrase “official proceeding” is not vague in the least. Congress explicitly defined “official proceeding” for purposes of Section 1512 in 18 U.S.C. § 1515(a)(1). Subpart (B) of that section explicitly includes “a proceeding before the Congress.”

There is an ongoing split among the circuits on when an investigation by the FBI, the Bureau of Prisons, or other agencies becomes an “official proceeding,” but the statutory language could not possibly be clearer on congressional proceedings. An ongoing joint session explicitly required by the Twelfth Amendment is very obviously covered.

The prosecution in a Section 1512 case “must show that the proceeding was pending at the time the defendant engaged in the obstructive conduct or, at the least, was then reasonably foreseeable by the defendant,” Marinello v. United States (2018), and as the Tenth Circuit has described the rule, the statute’s requirement of acting “corruptly” further “requires that a defendant’s obstructive conduct have a nexus in time, causation, or logic with the proceeding the defendant is charged with obstructing. In other words, interference with the proceeding must be the natural and probable effect of the defendant’s conduct.” U.S. v. Phillips (10th Cir. 2009). Even if that standard is difficult to prove in the case of people who milled about harmlessly in the lobby, and even if the courts might find its application uncertain in some borderline cases (as the Supreme Court did in Marinello and in Arthur Andersen v. United States), Chansley was the tip of the spear of the group that actually interrupted the ongoing joint session of Congress, and he did so quite deliberately after being told by the president of the United States to go influence the proceeding. That is why he pleaded guilty: because he was guilty, and the whole country saw on live television that he was guilty.

There are scores of other January 6 defendants whose cases are still working through the system. It is a positive first step that Judge Lamberth has sent a message that an example will be made of the people who rioted, assaulted Capitol police, and ground to a halt one of the solemn stages of our democratic process.

Editor’s Note: An earlier version of this article incorrectly stated which chamber Chansley entered, the type of spray used against Sicknick, and the department of the officer Fairlamb pleaded guilty to assaulting.