Disparate Sentencing of Capitol Rioters

A pattern is emerging.

Trump supporters try to break through a police barrier, Wednesday, Jan. 6, 2021, at the Capitol in Washington. As Congress prepares to affirm President-elect Joe Biden’s victory, thousands of people have gathered to show their support for President Donald Trump and his claims of election fraud. (AP Photo/John Minchillo)

The headline drew me to CNN‘s report “Al Gore ‘was a man’ about his election loss, unlike Trump, federal judge says.” A secondary story, though, led me down a bit of a rabbit hole.

A federal judge took aim at former President Donald Trump on Monday for lying about voter fraud during the 2020 presidential election, saying that former Vice President Al Gore had a better standing to challenge the 2000 election results but that he was “a man” and walked away.

“Al Gore had a better case to argue than Mr. Trump, but he was a man about what happened to him,” Senior District Judge Reggie Walton said of Gore’s decision to end his presidential bid following weeks of legal battles. “He accepted it and walked away.”

Walton, incidentally an appointee of George W. Bush, was the judge at the Scooter Libby Trial. And he’s got a point.

The comments from Walton came during a plea hearing for Capitol riot defendant Adam Johnson, who was photographed carrying House Speaker Nancy Pelosi’s lectern through the Capitol building. He pleaded guilty on Monday to a low-level charge of entering and remaining in a restricted building or grounds.

You’ve almost certainly seen him before. This guy:

“What concerns me, sir, is that you were gullible enough to come to Washington, DC, from Florida based on a lie,” Walton said, “and the person who inspired you to do what you do is still making those statements, and my concern is that you are gullible enough to do it again.”

Walton, who was appointed by the man who defeated Gore, former President George W. Bush, is the most recent to add his voice to a chorus of judges criticizing Trump for lying to his supporters. Last week, a federal judge also suggested Trump had some responsibility for the attack on the Capitol and called the rioters “pawns” who were provoked into action.

Johnson, 36, told Walton that he accepted responsibility for getting “caught up in the moment,” and said that a “hard couple of years” led him to spend a lot of time “listening to a lot of information and reading things” online.Investigators identified Johnson days after he was photographed smiling and waving as he carried the lectern through the Capitol building on January 6. According to prosecutors, Johnson started running to the Capitol building from the “Stop the Steal” rally at the Ellipse after someone in the crowd shouted “Pence didn’t do it!” Johnson admitted that he brought a knife with him to Washington, but discarded it in the bushes on his way to the Capitol.

Once inside the building Johnson wandered around until he came across Pelosi’s office suite. He jiggled a door handle, prosecutors say, but it was locked. He then grabbed the lectern and carried it to the Capitol rotunda, posing for several pictures along the way.After he had discarded of the lectern, Johnson joined a crowd attempting to breach the House chamber. At one point, according to the plea agreement, Johnson said that a nearby bust of George Washington would be a “great battering ram” to get through the doors to the chamber.

During the hearing, Johnson revealed that he may write a book about his involvement in the riot. He agreed that the government can seize any money he makes publicizing the event for the next five years as part of his plea deal.
Johnson was originally charged with three federal crimes including theft of government property, but those charges will be dropped as part of his plea deal. He could face a sentence of up to six months in prison, according to his agreement with prosecutors read at his plea hearing on Monday. He will also pay $500 in restitution for damage done to the Capitol during the riot.

Johnson, like a lot of these yahoos, comes across as a sad sack who’s been duped by people who never themselves took these kinds of risks for the manufactured cause. But “up to six months in prison,” a modest fine, and an agreement not to profit from his crimes for five years seems fair enough.

But here’s where the rabbit hole emerges.

More than 130 defendants have pleaded guilty so far to charges connected to the Capitol riot, with most to date admitting to misdemeanor charges.

We’ve seen that the erstwhile QAnon Shaman, Jacob Chansley, get sentenced to 41 months, similar to what another man who actually assaulted a Capitol Police officer got. Perhaps disproportionate but, in the totality of circumstances, Chansley was a symbolic (if not actual) leader of the break-in.

But here’s the next bit:

Frank Scavo, who told local news outlets and the FBI he organized several buses to bring people from eastern Pennsylvania to Washington for the January 6 rally, was sentenced to 60 days in jail on Monday and received the maximum fine of $5,000.

The sentence, handed down by Senior DC District Judge Royce Lamberth, was much heavier than the 14 days of incarceration that the Justice Department had asked for. Scavo pleaded guilty to illegally demonstrating in the Capitol, a misdemeanor offense, in September.

Before issuing the sentence, Lamberth told Scavo he gave him “credit for the fact that you did not put anyone at risk” or engaged in violence but said that “without you and other people” the attack on the Capitol “would not have happened.”

Scavo told the judge he had a “deep sense of regret” for his actions on January 6, adding later that “it was a crime.”

“From the point the jig was up, you’ve done everything you could,” Lamberth told Scavo in a brief comment following the sentence. “Good luck to you.”

According to the Justice Department, Scavo had captured assaults on Capitol Police officers while filming on his phone and bragged about “storm(ing)” the Capitol. On his Facebook page that day, Scavo posted that “PENCE IS OUT OF CAPITOL” and “No certification Today!!!”

“He had more or less a front-row seat” to the Capitol siege, Assistant US Attorney Seth Meinero said during the hearing, adding that Scavo saw the crowd push into the east front of the Capitol after the Trump rally.

So, this seems bizarre on its face. It’s not illegal to organize buses for a rally, a Constitutionally-protected activity. He did in fact take part in the photo-op inside the Capitol, though. I wouldn’t think filming it and posting about it on social media, even in a supportive manner, would be other than protected speech but, granted, not inclined to make the judge go easy on you.

In isolation, six months and $5000 doesn’t seem incredibly steep for active participation in an attempt to overturn a democratic election. But he’s getting a harsher sentence than Johnson, whose actual crimes are worse. And, while it’s the job of judges to judge—it’s right there in the name, after all—it strikes me as unusual to radically exceed the sentencing request of the prosecutor in light of a plea deal. Not only was that the basis of the deal but, in a situation where a whole lot of people are being charged for their part in a larger action, prosecutors are in a better position than the judge to assess the relative severity of the offenses. If anything, the judge should be the one saying, no, the prosecutor is asking for too much.

A BuzzFeed report (“A Judge Who Felt Burned After Giving A Capitol Rioter Probation Threw The Book At Another Defendant“) that I came upon looking for more information on Scavo, though, sheds some light on it:

Lamberth was the first judge to hand down a sentence in the Capitol cases earlier this year, ordering Anna Morgan-Lloyd of Indiana to serve probation after she delivered a tearful statement to the court expressing regret for her role in the riot. The next day, Morgan-Lloyd appeared on Fox News and made comments that appeared to downplay the violence on Jan. 6; her lawyer has claimed her client got “played” by host Laura Ingraham.

Lamberth has made clear since then that he felt burned by what happened with Morgan-Lloyd, and that other defendants asking for mercy would be met with a skeptical eye. In a written opinion in September in the case of rioter Jacob Chansley, who at the time had pleaded guilty and was awaiting sentencing, Lamberth wrote that he hoped Chansley’s “change of heart is sincere.”

The judge added in a footnote: “The Court’s hopes have been recently dashed when, a day after sentencing, another January 6 defendant made statements in an interview that directly conflicted with the contrite statements she made to the undersigned.”

Granting that judges are human beings, it seems patently unfair to punish Scavo because Morgan-Lloyd played him. They’re different people who committed different crimes. That may also have influenced the aforementioned sentencing of Chansley:

Lamberth last week sentenced Chansley to 41 months in prison, which was less than the 51 months incarceration that the government argued for, but far more than the period of time-served (roughly 10 months) that Chansley wanted; he’d pleaded guilty to one felony count for obstructing Congress. Earlier this month, Lamberth rebuffed another Capitol rioter’s request for a lighter sentence, ordering Scott Fairlamb to spend 41 months in prison after the former mixed martial arts fighter from New Jersey pleaded guilty to punching a police officer in the head.

As I may or may not have posted before, there are other anomalies:

Lamberth isn’t the first judge to hand down a stiffer sentence than what the government requested in a Jan. 6 prosecution. US District Judge Tanya Chutkan first did that in October, sentencing Matthew Mazzocco to 45 days in jail instead of the period of home detention recommended by the prosecutor.

“There have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home,” Chutkan said at the time.

So, again, judges are human begins who bring their life experiences, politics, and prejudices to the bench with them. And, while I agree with Chutkan that some of the sentences seem to be low in the greater context of the event, it’s patently unfair to treat some defendants much more harshly than others for their parts in the same crime simply on the whim of judges.

And, sure, the usual caveats apply. Black, Brown, and poor defendants tend to get worse treatment than White, rich ones. There are all manner of injustices in our society and the disparate treatment of some low-grade insurrectionists and the useful idiots who have been radicalized by Fox News and Donald Trump are not at the top of the list of those deserving our sympathy. But high-profile cases sometimes draw our attention to injustices in a way that routine ones don’t and we shouldn’t dismiss them simply because other parts of the system are even more broken.

FILED UNDER: Capitol Riot, Crime, Law and the Courts
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Blue Galangal says:

    The Twitterati have been warning for months that light sentences at the beginning were sending the wrong message. Perhaps this is a course correction.

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  2. Matt Bernius says:

    it’s patently unfair to treat some defendants much more harshly than others for their parts in the same crime simply on the whim of judges.

    Yup.

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  3. CSK says:

    Jenna Ryan, the Texas realtor who boasted on Twitter that she wouldn’t be going to prison because she has white skin, blonde hair, a great job, and a great future, was sentenced to serve 60 days and pay a $500 fine.

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  4. JohnMcC says:

    Just to challenge the commentariat: There’s a piece at the Bulwark this morning in which Jonathan Last (a stranger to me) advocates a different approach.

    https://thetriad.thebulwark.com/p/maybe-biden-should-pardon-the-qanon

    “Maybe President Biden should pardon Chansley. And then bring him to the White House and sit down with him, and Mike Pence, and have a beer and try to teach America a thing or two.”

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  5. JKB says:

    “There have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home,” Chutkan said at the time.

    An embodiment of it doesn’t matter how smart you are if you don’t stop and think. The idea the US government was about to fall because some people paraded through the Capitol. Their crime is mostly not having support of the Democratic party’s congressional leadership as the Kavenaugh occupiers did or one of the many other parades and protests over the years. A violent overthrow of the government would have had guns and, after all, it just property, it’s insured, right (by the taxpayer).

    But it does amaze me how many seem to have been so naive as to think they might be treated the same as a Democrat protestor after a Republican inauguration, Antifa or BLM, i.e., no charges or charges dropped.

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  6. Sleeping Dog says:

    Perhaps, among conservatives, there will now be interest in standardizing sentences. On second thought, they won’t. After all it is important to lock up those others, while playing the system to get your brethren off.

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  7. Sleeping Dog says:

    @JohnMcC:

    Saw that the other day, the logic is along the lines of squeezing a squeak toy to distract a dog that is obsessively licking his paws. Break the current moment/trend and cut against the grain.

    If Biden were to pursue that line of reason, Chansley is a good candidate. It has been clearly established that he suffers from bi-polar disorder, that makes him a sympathetic character to the left, he was high profile in Qanon and Trump-world before 1/6 and he consistently expresses remorse and goes beyond that to criticize TFG (likely because he’s back on meds). Biden need not pardon him, but commuting the sentence to time served and probation would serve the purpose Last is advocating.

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  8. Stormy Dragon says:

    WON’T SOMEONE PLEASE THINK ABOUT THE POOR TERRORISTS? /sarc

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  9. Daryl and his brother Darryl says:

    @JKB:

    The idea the US government was about to fall because some people paraded through the Capitol.

    What was their goal? To stop the counting of Electoral Votes. To “stop the steal.” They were sent there to do that by a person who had been voted out of office, but intended to stay in power by “stopping the steal.” The intended process was spelled out quite clearly in the Eastman memo, as well as others of it’s kind. This, you fuqing moron, is the very definition of trying to overthrow the Government. The peaceful transfer of power was interrupted for the first time in 245 years. This is the very definition of trying to overthrow the Government.
    Just because it is your team attempting the coup, does not forgive the coup attempt.
    You’re a POS traitor to your country, JKB. Just like every single other apologist for this treasonous coup attempt.

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  10. Matt Bernius says:

    For the record 234 protestors were arrested and initially charged at Trump’s Inauguration, 21 plead guilty, 6 went to trial and were found not guilty by juries (which led to the dropping of charges over lack of evidence).

    https://nymag.com/intelligencer/2018/07/charges-dropped-against-all-j20-inauguration-day-protestors.html

    Likewise, charges at the local and federal level have come out of the protests from last summer:
    https://apnews.com/article/records-rebut-claims-jan-6-rioters-55adf4d46aff57b91af2fdd3345dace8

    Part of the problem facing 1/6 protesters is they went into a building with a lot of cameras and they documented thier own actions. BTW, here’s an example from Capital cameras of how “non-violent” the crowd was when they were breeching the Capital:
    https://twitter.com/MacFarlaneNews/status/1462918564969697286?t=TeZlUfHX2LNot-JWZK_4kA&s=19

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  11. Michael Reynolds says:

    @JKB:
    You never have anything to offer but lies. In other words, you have nothing to offer.

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  12. CSK says:

    @JKB:
    Did you miss the mob yelling “Hang Mike Pence”?

    What about the two women who shrieked about wanting to find Nancy Pelosi to put “a bullet through that bitch’s friggin’ brain”?

    And…do peaceful protesters build a gallows outside the Capitol?

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  13. gVOR08 says:

    @Michael Reynolds:

    You never have anything to offer but lies. In other words, you have nothing to offer.you’re a Republican.

    I felt that could be clarified.

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  14. Jen says:

    I applaud those of you willing to try with our resident Coup Apologist. I just can’t at this stage. Anyone who still thinks this was an appropriate demonstration rather than an attempt to stop a peaceful transfer of power is delusional.

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  15. gVOR08 says:

    Our “justice” system is delivering inconsistent results. That joins the revelation that the 1/6 defendants that didn’t make bail are being held in miserable conditions as meriting a “duh”.

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  16. CSK says:

    @JKB:
    The names of the two women in search of Nancy Pelosi in order to shoot her were Dawn Bancroft and Diana Santos-Smith. They filmed themselves talking about making the threat. They were wearing MAGA hats.

    On the video, Bancroft says: “We broke into the Capitol…we did our part. We were looking for Nancy to shoot her in the friggin’ brain but we didn’t find her.”

    Just peaceful, law-abiding tourists.

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  17. CSK says:

    @JKB:

    Oh, and one Cleveland Grover Meredith Jr. texted that he was “thinking about heading over to Pelosi CUNT’S speech and putting a bullet in her noggin on Live TV.”

    He also brought a camper full of weapons and ammunition to the party. Very peaceful indeed.

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  18. JohnMcC says:

    @Daryl and his brother Darryl: I flyover that person’s comments but your quote there… that’s correct? Amazing.

    That was a hell of an air show the Imperial Navy put on over Hawaii back in the day. And people got SO upset!

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  19. Monala says:

    @JohnMcC: I think this would make more sense if VP Harris facilitated it. You know, one VP to another… plus as someone younger, she’d be less at risk around the unvaccinated Chansley than President Biden. Finally, the real test of Chansley’s remorse would be whether he’d be willing to reconcile with a woman of color.

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  20. Daryl and his brother Darryl says:

    @JohnMcC:

    That was a hell of an air show the Imperial Navy put on over Hawaii back in the day.

    A line worthy of stealing. Thanks.

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  21. CSK says:

    @JohnMcC:
    “That was a hell of an airshow…”
    Perfect.

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  22. CSK says:

    What astonishes me about the Capitol insurrectionists is that they thought they could threaten to commit murder, break into the building, trash it, and steal other’s property not just without consequence but ostensibly in the belief that they were doing the right thing.

    Why would it have been “right” to kill Mike Pence or Nancy Pelosi?

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  23. Scott F. says:

    @CSK:

    What astonishes me about the Capitol insurrectionists is that they thought they could threaten to commit murder, break into the building, trash it, and steal other’s property not just without consequence but ostensibly in the belief that they were doing the right thing.

    “Because it’s common sense, Jon. It’s common sense that you’re supposed to protect. How can you — if you know a vote is fraudulent, right? — how can you pass on a fraudulent vote to Congress? How can you do that? – Donald J. Trump: 45th President of the United States (and titular head of today’s Republican Party)

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  24. Gustopher says:

    Oh, high profile white people are stumbling into the jaws of our broken, but sort of functional, justice system. I don’t have a whole lot of sympathy for these people, but yes, some standardization of sentences would have been good.

    Perhaps this will get Republicans interested in criminal justice reform, and will lead to some good coming from all of this. I doubt it, but maybe.

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  25. CSK says:

    @Scott F.:
    It was mostly a rhetorical question I was posing to myself, sort of musing aloud, as it were.

    What’s pathetic is that the insurrectionists were so gullible as to allow themselves to be manipulated by a conman who despises them.

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  26. Scott F. says:

    @CSK:
    I understand you are musing, but I don’t want us ever to lose sight of the bigger picture and the main drivers.

    Sure, you have to address the addicts, but the real prize is the pushers.

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  27. CSK says:

    @Scott F.:
    Oh, no question. But it will always confound me that someone who so obviously, blatantly, overtly despises the masses should be so adored by them.

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  28. Michael Reynolds says:

    @CSK:
    Unfortunately a great many on our side also obviously, blatantly and overtly despise those same people.

    Say on a Saturday night you have invitations to two parties. One is from a guy you know thinks you’re stupid, backward and probably evil and will lecture you on your failings all night long. The other is from a guy who thinks you’re stupid and backward, but will nevertheless tell you you’re great.

    My choice would be: neither, but then I’m not a people person. <— droll understatement.

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  29. CSK says:

    @Michael Reynolds:
    I see your point, but there’s a big difference. The masses aren’t blindly following me, or you (except for your fans). We haven’t tried to con them that we love them.

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  30. Lounsbury says:

    @JohnMcC: It is quite a clever idea, and if properly mediatised and handled might very well be worth something. If the urge to treat them with disdain can be contained. A rather big if but not to be excluded with Mr Biden.

    @Michael Reynolds: Indeed, the choice being treated with open contempt as unworthy except to be lectured on your failings, or pretend façade of respect and catering. There being zero surprise to anyone with a modicum of human savvy what they opt for, regardless of intellectualised ‘but but but’ responses.

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  31. Jim Brown 32 says:

    THIS IS A TRAV…..

    You know what–just shit on em. Not just regular shit either–soupy with vegetable bits shit. Its the criminal justice system not bean bag. Toughen up buttercup.

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  32. Just nutha ignint cracker says:

    @Jim Brown 32: I find myself torn. I do agree that the inconsistency is a frustration and a problem in meting out anything even vaguely resembling justice (which would bring up how few tears are shed when the same types of things happen to POC, but that would be a digression, so I won’t). With that the injustice issue in mind, I went out to my planter box to get a couple of f**ks to give to the topic. Sadly, a frost had settled in overnight, killing the plant.

    So, here I am, and like you, I haven’t any f**ks left for these guys. It’s so sad.

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  33. Jim Brown 32 says:

    @Just nutha ignint cracker: It is very disappointing to be honest. I hate our Country is here–but we have to look these people square in the face. There has to be a Rubicon to partisanship. If boundaries are not set–we’ll continue to have a shit show for a government.

    This propaganda and conspiracy campaign isn’t going to stop–people are going to believe them. The best play right now is to communicate if you go outside the process to ‘save’ America–you’re life will be ruined.

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  34. Kathy says:

    On the other hand, the spiritual and intellectual predecessors of the January Putsch participants had a saying: “kill them all and let St. Peter sort them out.”

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  35. Scott F. says:

    @Lounsbury: So, what’s the countermeasure?

    Hidden (instead of open) contempt? Tacit acceptance of their sincerely held beliefs regarding democracy, race, social safety programs, etc?

    A more authentic (rather than pretend) façade of respect and catering?

    Because, offering policies designed to genuinely help these voters (as demonstrated by Biden’s rhetoric and in many of the proposals included in the infrastructure bill and the BBB package) doesn’t seem to be work in reaching these people.

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  36. JohnMcC says:

    @Scott F.: Both my sibs are TeaParty holdovers. I had a several-weeks conversation via text on the subject – ‘what is killing all those R’s in R-counties with low vax rates?’

    They contend that there’s nothing to see there. Just keep walking. And did you know there’s a couple of million illegal immigrants coughing and sneezing all over the place?

    These are really intelligent women in every other respect. We all of us here seem to have similar stories.

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  37. Kathy says:

    I wonder why so many of these people took photos of themselves to post on social media, while they were busily committing a crime. Were they that stupid, or were they counting on a pardon from the orange one?

    The other alternative I can think of, is they didn’t think they were committing a crime.

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  38. CSK says:

    @Kathy:
    That’s part of my point. I don’t believe they did think they were committing a crime, although how they could construe wanting to hang Mike Pence, shoot Nancy Pelosi, break and enter, trash the place, and steal from it could not be construed as crimes, I don’t know. I suppose they deluded themselves into believing they were Great Patriots righting a grievous wrong.

    A lot of these pathetic schmucks seem convinced that no one cared about them till Donald Trump, a man who thinks they’re lower than dirt, came along. First they thought that person might be Sarah Palin, but she bailed on them. And hell, she was a girl.

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  39. Kathy says:

    @CSK:

    Those who succeed at carrying out a coup, and then survive the inevitable infighting, are not charged with crimes*. Those who fail should be given what Didius Julianus got . Though it’s worth noting he bought the throne after a palace coup, well, half a dozen of one and six of the other.

    *The principals might face charges if they give up power or are deposed in turn. Those lower down may be overlooked.

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  40. Jax says:

    @CSK: That’s how all these state legislatures will justify changing their election laws so that they can just decide not to certify the election if a Dem wins. As far as they’re concerned, what they are doing is right and just. It has to be.

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  41. Just nutha ignint cracker says:

    @CSK:

    although how they could construe wanting to hang Mike Pence, shoot Nancy Pelosi, break and enter, trash the place, and steal from it could not be construed as crimes, I don’t know. I suppose they deluded themselves into believing they were Great Patriots righting a grievous wrong.

    Believing themselves to be great patriots is the key. It’s part of the whole *history is written/told in the voice of the winner* idea.

    And to some degree, they’re right–provided that they win. (Unlikely though that may be–which is why only one person breached a barrier inside looking to put a bullet in/hang Nancy or Mike Pence. And we all know what happened to her. Patriotism is heady stuff. Easy to overdo and lose bigly.)

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  42. Just nutha ignint cracker says:

    @Kathy: I don’t really follow historical stuff all that closely, but don’t most nations record in some manner the process of wars? I assume Germany, Russia, Japan and so on filmed battles and such just like the US did (but I may be wrong). If so, it makes some sort of inverted/perverted sense that these loons would do the same. They had no more idea that they were going to lose than the narrator in the Abba song Fernando, though I certainly HOPE that they will have more regrets. But that’s in the hands of the court system.

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  43. Dude Kembro says:

    @Jen:

    Anyone who still thinks this was an appropriate demonstration rather than an attempt to stop a peaceful transfer of power is delusional.

    Republicans don’t think it was an appropriate demonstration. Tantamount to Kyle Rittenhouse, had the perpetrators of Jan 6 been brown and Muslim, they and everybody would immediately recognize these actions for what they were: an act of terrorism.

    Republicans are just pathological liars who want to see how far lying and gaslighting can take them. They know they’re totally full of crap.

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