The Thread I Have Been Waiting For

With respect to @joshgerstein, who is an excellent reporter, I don't think this analysis fairly conveys why the feds are not seeking the terrorism enhancement from the U.S. Sentencing Guidelines. /1https://t.co/gMGx721pyJ

— SatanicBeanbagHat (@Popehat) January 4, 2022

/3 Here's the relevant guideline. It allows a dramatic increase to the offense level to a FELONY that "involved, or was intended to promote, a federal crime of terrorism." What's THAT when it's at home? The guideline refers us to a statute.https://t.co/Qz30iW8mUh

— SatanicBeanbagHat (@Popehat) January 4, 2022

/5 The crime must ALSO be one of a set of specified federal crimes in 18 USC 2332b(g)(5)(B), a list of specific federal statutes. Most of those statutes don't apply to stuff that happened at the Capitol on 1/6. Only a few do (arguably 18 USC 1363, damaging federal buildings.)

— SatanicBeanbagHat (@Popehat) January 4, 2022

/7 Add to those (3) because it would tank plea bargains and make people go to trial, which they can't handle at any scale at all, and (4) it's actually challenging to prove that someone's acts were calculated to influence government by intimidation or coercion.

— SatanicBeanbagHat (@Popehat) January 4, 2022

/8 So, with respect, I don't agree with the implication that failure to seek the terrorism sentencing enhancement reflects lack of will.

— SatanicBeanbagHat (@Popehat) January 4, 2022

This has been another episode of “Next Time Ask A Lawyer Who Knows What She/He Is Talking About.”

And, for a bit of context:

A year later, no consequences. None. Zip. Zilch. https://t.co/2fgwyZtH2Y

— Catherine Rampell (@crampell) January 4, 2022

I suppose we could have taken all 700+ cases to trial to give juries a say in this. That would have sped justice along, right? Or we could just stuff the 700 in a hole and spend all our efforts on one or two people. Or we could look at the Elizabeth Holmes case, which finally went to trial and had the jury deadlock on three counts. Fact is, convictions for violent crimes or even property crimes are easier to win than “white-collar” crimes. It’s much easier to convict the guy who broke the window, especially when you have him on video, than it is to convict the guy you say convinced the guy to break the window.

So it goes. Prosecutors don’t take cases to court they don’t think they can win.

Few lawyers do, actually.