The U.S. Capitol contains the chambers and offices of Congress. Will trespassers, who are “entering a property without permission,” of a Capitol building be jailed?
In December 2020, the tapes showed Antifa member Alexander Sparks using an ax to break into and partially destroy parts of another Capitol complex, the Fargo, N.D., office of U.S. Sen. John Hoeven, R-North Dakota. Will Mr. Sparks be jailed??
While the Department of Justice/FBI were processing Mr. Sparks, on Jan. 6,2021, a large crowd who had just listened to President Donald Trump encourage them to “peacefully” march to the Capitol, got out of control. The record is unclear whether the initial arrivals “entered the property without permission,” but it is doubtful that later arrivals ever heard any guards denying them permission to enter.
Virtually all this group left within minutes of entering.
The reports were misleading in that they included that the crowd was armed, a Capitol employee was killed, damage was extensive, the speaker’s podium was stolen, and Vice President-elect Kamala Harris felt threatened. Over the next several months, the truth was dribbled out that there were no weapons, the employee died later that night from natural causes in his office. The Capitol was back operating by 8 that very night, and the podium was found elsewhere in the building. Vice President-elect Harris was not in the Capitol.
It was not an “insurrection,” which is an attempt to overthrow a government, nor an invasion, which requires an “armed force.” Will these trespassers be jailed?
So many of the 840 arrested for the events of January 6 were jailed that a special jail was built just for them. Somewhat amazingly this even included the estimated 500 the FBI indicated will only be charged with trespassing and possibly “failure to leave a government building,” charges that might be appropriate for failure to leave a government museum at closing time. Shamefully, although no one has been charged with “insurrection,” since that requires using armed force to overthrow the government, that allegation is being used punitively to deny many of their rights under the Bill of Rights and even having the Veterans Administration cancel the benefits veterans earned serving their country.
The Democrats in the House on July 1, 2021, formed a “January 6” committee to use the legislative branch’s powers of investigations to prevent “close calls with violent and lawless attacks on our government.” Notice this confirms that there might have been “close calls,” but there was no violence.
The Republicans declined to participate in these hearings because of the prohibition against investigating the person responsible for Capitol security: Speaker Nancy Pelosi. Did creating this committee offer a hint that Mr. Sparks might get jail time?
Not really, as the Democrats’ committee was meeting, other Democrats were raising money for the defense of the ax attacker of Sen. Hoeven’s office.
A few months later, on Nov. 21, 2021, the DOJ ignored the sentence guidelines of 10-16 months in jail by recommending only probation and a fine of $2,800 for Antifa member Sparks, and even Mr. Sparks laughed when his ax was returned to him. Was this an aberration?
Not really. Consider the treatment given to the participants in the Capitol events in June 2022. One of the staffers of U.S. Rep. Adam Schiff, D-Burbank, a member of the Jan. 6 committee, gave unauthorized entrance to part of the Capitol, Longworth Hall, to Robert Smigel and eight others (aka “the Smigel nine”) before the Capitol police ordered the unauthorized group to leave.
At approximately 8:30 p.m., the Capitol police received a call of a disturbance in Longworth Hall, where the tapes would show the “Smigel nine” banging on the offices of a Republican congressman and a witness who feared violence.
The investigation showed that after they were ordered to leave, and after the Capitol had closed, the chief of staff to U.S. Rep. Jake Auchincloss, D-Mass. — Tim Hyson — encouraged them to re-enter illegally by opening a side door for the Smigel nine, who appear to have been encouraged by “Late Show” host Stephen Colbert.
Rep. Auchincloss took office on Jan. 21, 2021, just weeks after Jan. 6. He was aware of Capitol security requirements. Were the Smigel nine treated the same as the Jan. 6 group?
Not really, as the Smigel nine neither spent a single night in jail nor were charged with trespass, refusal to leave a government building, or lying to a federal agent. They were charged with “unlawful entry,” and on July 19, 2022, the DOJ announced that the department had dismissed the charges against the “Smigel nine.”
The inconsistency in the treatments of the trespassers, including Sparks, the Jan. 6 group, and the Smigel nine, and those who encouraged and/or aided the trespassers, such as Congressmen Schiff and Auchincloss, and their staffs, and Mr. Colbert, versus the treatment given President Trump for his only saying “peacefully” march to the Capitol?
Why include President Trump?
Brent E. Zepke is an attorney, arbitrator and author who lives in Santa Barbara. His website is OneheartTwoLivescom.wordpress.com. Formerly, he taught law and business at six universities and numerous professional conferences. He is the author of six books: “One Heart-Two Lives,” “Legal Guide to Human Resources,” “Business Statistics,” “Labor Law,” “Products and the Consumer” and “Law for Non-Lawyers.”