Here's why prosecutors are avoiding domestic terrorism sentences for MAGA rioters
Rioters January 6th (AFP)

The White House, the Justice Department and the FBI have all denounced the Jan. 6 Capitol Hill riots as an act of domestic terrorism, but prosecutors have still not asked judges for harsher sentences even one year following the insurrection, citing unspecified "facts and circumstances."

"In front of judges and in court filings, the Justice Department is engaged in a delicate rhetorical dance on the domestic terrorism issue," POLITICO's Josh Gerstein reported. "Seeking to satisfy a large swath of the public outraged by the Jan. 6 riot, prosecutors have declared that the event 'certainly' qualifies as domestic terrorism. But they’ve kept their powder dry thus far on invoking the terrorism sentencing boost — potentially because its impact can be so severe."

Taking a step back, "the so-called sentencing enhancement for terrorism crimes was created as a result of legislation Congress passed following the 1993 bombing in a parking garage at the World Trade Center. The provision initially applied only to crimes linked to international terrorism, but after the bombing of the Oklahoma City federal building in 1995, Congress moved to expand the enhancement to cover terrorism inspired purely by domestic causes," POLITICO reported.

Current federal criminal offenses now include terrorism-related language, such as “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” Legal experts have negotiated whether Congress should pass a domestic-terrorism statute, but so far to no avail.

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"At pretrial hearings, defense attorneys have indicated that they were unwilling to consider plea deals for their clients because prosecutors would not agree to refrain from seeking the domestic terrorism charges. In other cases, prosecutors seem to have dropped the enhancement, in exchange for cooperation from particular defendants," POLITICO reported. "Critics say giving prosecutors the authority to pursue or not pursue the massive sentence booster in cases stemming from political protests gives too much power to prosecutors in the process of negotiating a plea."

“It’s just lying there as a cudgel if they want it,” said Karen Greenberg, director of Fordham University law school’s Center on National Security. “It can be used so many different ways.”

It begs the question: could vandalism of government property be considered domestic terrorism under the law?

“There appears to be a good deal of distance between that allegation and a terrorism case,” defense attorney Nick Smith wrote on behalf of alleged Proud Boys leader Ethan Nordean. “Piquant photographs of Proud Boys do not bridge the gap.”

The ambiguity is clear. What isn't clear is what happens next.

“Obviously, the terrorism enhancement is going to be a big issue,” said U.S. District Court Judge Brian Cogan, an appointee of President George W. Bush. “I have no idea where I’m coming out on that at this point.”

“It’s very arbitrary in how and when the government wants to apply this enhancement,” said Michael German, a former FBI agent and a fellow at the Brennan Center for Justice at New York University. “Part of the problem with using a politically charged word like terror in our legal statutes is it is politicizing these determinations. Law enforcement is always going to view protests against government policy as inherently dangerous. If somebody broke a window, they should be charged with breaking a window. If they had some political purpose for that, that shouldn’t be part of the decision.”

Attorney General Merrick Garland declined to divulge further details about how prosecutors are handling the Jan. 6 insurrection cases, but did offer insight toThe New Yorker this past Oct. that he's : “...quite aware that there are people who are criticizing us for not prosecuting sufficiently and others who are complaining that we are prosecuting too harshly. This is, you know, part of the territory for any prosecutor in any case. I have great confidence in the prosecutors who are doing these cases.”