The Biden DOJ brought hundreds of J6 misdemeanor prosecutions . . . as the Times marvels at the Trump DOJ’s ‘unusually minor cases.’
This passage, in a New York Times report about the guy arrested in Washington for throwing a sandwich at an immigration agent, about knocked me over:
The trial of a man charged with assaulting a Customs and Border Protection agent by throwing a sandwich at his chest in protest began on Monday, several months after federal prosecutors failed to persuade a grand jury to approve a felony indictment against him over the incident.
Sean C. Dunn, a former paralegal for the Justice Department, will instead go to court to fight a misdemeanor assault charge in the August episode. A video of it circulated widely on social media, making him a symbol of local opposition to President Trump’s deployment of troops and federal agents in Washington.
The case stands out for its unusual facts and the Trump administration’s determination to prosecute the man, even on a lesser charge. But it is one of a number of unusually minor cases the government is bringing to federal court at Mr. Trump’s direction. [Emphasis added.]
When I was a federal prosecutor, it was highly unusual for the Justice Department to bother with misdemeanor cases. It was not all together uncommon for defendants who were charged with one or more felonies to be charged, in conjunction, with misdemeanors — especially if they had extensive criminal histories, such that the defendant’s recidivism could justify charges the federal government would ordinarily not be inclined to bring. Generally speaking, though, with finite resources and lots of crime to address, a case was not worth the Justice Department’s time unless it was a felony. Lesser charges could be referred to the state authorities, who prosecuted many misdemeanors.
(Note: The constitutional right not to be subjected to trial absent a grand jury indictment applies to felonies, not misdemeanors. Hence the Times’ highlighting the fact that Dunn is on trial despite a grand jury’s declining to charge him.)
That DOJ practice of declining to charge misdemeanor cases held for a long time. It has been blown to smithereens, however, not by the Trump Justice Department but by the Biden Justice Department — specifically, its January 6 prosecutions. In the Biden administration’s effort to boost the Democratic narrative that Trump supporters were domestic terrorists who threatened democracy itself, the Biden DOJ undertook to make the riot the biggest federal investigation in American history. In the end, over 1,600 defendants were prosecuted.
To be sure, hundreds of these defendants deserved to be prosecuted — those who assaulted police officers and damaged property. If the Biden DOJ had just targeted those people, in what would certainly have been one of the biggest federal investigations of all time, that would have been laudable, and the charges would have been richly deserved felonies.
(Around 140 police officers were assaulted. The Democrats’ oft-repeated claim that several officers died in the line of duty is untrue. No officer’s death was directly traceable to the riot. Officer Brian Sicknick died of stroke the day after the riot, and though he had been assaulted, the Justice Department could not prove, and did not allege, that the assault caused the stroke.)
Instead, prosecutors charged hundreds of misdemeanor cases. These are people who did no meaningful harm, who were essentially loitering in a place in which they should not have been, after Congress had already been adjourned for security reasons because of the violent offenders. They should not have been charged. But they were because the Biden DOJ and Democrats took the position that anyone connected to the January 6 uprising, no matter how tangentially and inconsequentially, must bear the scarlet letter of a criminal conviction, no matter how petty the “crime.”
I don’t believe the Justice Department has ever produced a final, official accounting of the charges brought. I do know that at the start of Trump’s second term, Lawfare produced statistics indicating that, of 1,009 defendants who had pleaded guilty at that point, 68 percent (682) had pled to misdemeanor offenses. And as that report noted, Biden Attorney General Merrick Garland had indicated, back on the first anniversary of the riot, that 55 percent of the 725 defendants who had by then been prosecuted had been charged with misdemeanor offenses.
Personally, I would have not the slightest hesitation convicting a defendant who threw a sandwich at a cop with a felony, never mind a misdemeanor. Legally, to convict of felony assault does not even require physical contact (battery) — putting the officer in fear that he is about to be struck will do it.
In fact, the only jury nullification-style defense that might resonate with me would be that the administration hellbent on nailing sandwich-man is run by the same president who had pardoned everyone accused or convicted of assaulting cops police during the Capitol riot — many of whose injuries were serious.
But for the Times to suggest that the Trump administration is doing something very rare by prosecuting defendants on “lesser” misdemeanor charges in a “number of unusually minor cases” is rich.
Trump’s major issues in the 2024 campaign included immigration enforcement and addressing urban crime. He and his supporters feel every bit as strongly about the need to make an example of even minor offenders who impede those efforts as the Democrats (and their media organs) felt about the righteousness of saddling everyone connected to January 6 with the ignominy of a criminal conviction.
Sandwich-man might have had a better argument against federal prosecution if the Biden DOJ hadn’t brought hundreds of misdemeanor cases and then congratulated itself annually for doing so.