For the first time, federal prosecutors have spelled out in court documents why they believe there simply is no legitimate legal comparison between Capitol insurrectionists and racial-justice protesters who took to the streets in the wake of George Floyd's murder last year.
The New York Times reported Friday that Jan. 6 rioter Garret Miller of Dallas — who once threatened to assassinate Alexandria Ocasio-Cortez — has raised a "selective prosecution defense," arguing that he's being treated worse than George Floyd protesters based on his political beliefs. The essence of Miller's argument has become a staple among right-wing media pundits and Republican politicians in recent months, cited by the likes of Ohio Rep. Jim Jordan in opposition to congressional investigations of the Capitol insurrection.
In a brief responding to Miller's argument, federal prosecutors noted that while some racial-justice protesters outside Portland's federal courthouse last year committed "serious offenses," Miller was involved in "a singular and chilling event in U.S. history" that threatened both the safety of the Capitol and "democracy itself."
"Mr. Miller, prosecutors noted, was 'part of a mob' that 'breached the Capitol building, and assaulted law enforcement with the goal of impeding congressional certification of the 2020 presidential election,'" the Times reported. "The defendants in Portland, they pointed out, never actually broke into the courthouse and never disrupted a proceeding before Congress."
In addition, prosecutors say they have stronger, more damning evidence against Miller, including his social media posts from before the insurrection about "civil war" and taking firearms to Washington, as well as surveillance video that shows him in "a fighting stance" confronting Capitol police officers. In addition to Ocasio-Cortez, Miller later took to Twitter to threaten the police officer who killed insurrectionist Ashli Babbitt, writing, "He will swing."
"Stripped to its core, Miller relies on rank conjecture in suggesting that political favoritism has guided the government's charging and plea decisions," prosecutors wrote.
A federal judge will ultimately decide the merits of Miller's argument, but the Times notes that selective prosecution defenses are rarely successful.