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Melissa Harris-Perry: Thanks for being with us on The Takeaway. I'm Melissa Harris-Perry, and it's good to have you with us.

It's been two years since a violent mob attacked the US Capitol. On January 6th, 2021, thousands of supporters of former President Trump descended on Washington DC trying to stop Congress from certifying the 2020 election results and making Joe Biden's presidency official.

Protestor: We're storming the capitol. It's a revolution.

Melissa Harris-Perry: So far more than 900 people have faced federal charges for their roles as participants in the attack. The FBI says approximately 2,000 individuals participated, some illegally entering the capitol building and vandalizing and looting while inside, most of the charges brought so far have been for these so-called petty offenses, but nearly 300 people have been accused of assaulting or resisting the police, about a hundred of those also getting the additional charges of using weapons or injuring officers. Former Metropolitan Police officer Michael Fanon, testified about his harrowing experience to the FBI.

Michael Fanon: I heard chanting from someone in the crowd, kill him with his own gun. I was electrocuted again and again and again with a taser. I'm sure I was screaming, but I don't think I could even hear my own voice.

Melissa Harris-Perry: Many of these cases have ample evidence of the charged crimes. Not only is there police body camera and surveillance footage, but also videos proudly taken and posted on social media by the defendants themselves.

Protestor: I hear the pinch just caved. Is that true? I'm hearing reports. The pinch caved, cut their head off. You can do it. You do the right thing and we're going to force you to do the right thing.

Melissa Harris-Perry: So far, we've seen judges hold a fair amount of discretion over the sentences attached to the variety of convictions. Joshua Pruitt was sentenced to four and a half years in federal prison in August. He faced a number of charges, including the serious one of obstruction of an official proceeding. He's appeared to show remorse for his actions, at least sort of.

Joshua Pruitt: I was just a patriot out there. I don't feel like I did anything wrong, but knowing the consequences that came out of it would be the part that would make me question it.

Melissa Harris-Perry: Others haven't wanted to admit guilt at all. Here's Cliff Meteer, who was convicted of disorderly conduct, illegally entering the Capitol, and other offenses.

Cliff Meteer: The doors were open, Capitol police were standing right there letting people in. Inside the Capitol building, it was a peaceful process. I never saw anything that constituted any riot.

Melissa Harris-Perry: Meteer was sentenced to 60 days in jail and 36 months of probation in April, and the Department of Justice won a landmark conviction in November, a jury found Stewart Rhodes, the founder of the far-right militia group, the Oath Keepers guilty of Seditious Conspiracy among other charges. Rhodes has not yet been sentenced, but each of his charges carries a statutory maximum penalty of 20 years in prison.

These 900-plus cases already comprised the single largest prosecution in the history of the Department of Justice. Is this what accountability looks like for attempting to overthrow American democracy? With me now is Alan Feuer, reporter covering far-right extremism and political violence at the New York Times. Alan, welcome to The Takeaway.

Alan Feuer: Thanks for having me, Melissa.

Melissa Harris-Perry: Why are the offense charges relatively minor? Things like trespassing or illegal entering of a building, which may be the technical thing that happened but I guess I'm wondering if there is even anything that one could be charged for that takes account of the context in which illegally entering that building happened?

Alan Feuer: Yes, absolutely. I think you've hit on the tension here when you say technically speaking, so when prosecutors approach these hundreds and hundreds of cases, they have to make these difficult decisions to look at the individual conduct within the larger context of mob violence and also the political context of the day. Let's say most people who went into the building just as a matter of fact, didn't hurt anyone, didn't break anything. They illegally went into a structure.

When you look at the facts of that, there's really not much more you can do but charge him with these petty offenses. That said, we all know what was going on inside the building that day. It was like a sensitive moment of American democracy. It's the moment when our Congress certifies the results of the election and says, "Hey, we are now going to peacefully pass the torch from one president to the next and so that fact, that context was always in the mind of prosecutors. If some of these rioters say, went deeply into the building, breached the Senate floor, for example, if they stayed inside the building for a significant amount of time as opposed to just walked in, walked out.

If they encountered lawmakers inside the building and had anything to do with forcing the lawmakers away from doing their duty, they were charged not just with a petty offense, but with this other offense that is obstruction of an official proceeding in front of Congress and that charge carries a significant maximum penalty of 20 years in prison. The prosecution has been an ongoing attempt to sort and assign accountability and blame dependent upon specific factual conduct. That's what we want our prosecutors to do.

Melissa Harris-Perry: I actually appreciate that last point that is what we want our prosecutors to do but I suppose we've covered here on The Takeaway enough circumstances where for example, someone illegally entering a building in the context of a natural disaster and looting food and supplies who seem to be charged with even more intense crimes and end up having harsher sentences.

Alan Feuer: The sentencing question is fascinating and I would agree with you entirely there, so because most of the crimes that have been charged thus far are these misdemeanors and it could range from anything from the federal equivalent of trespassing to disorderly conduct to this unusual crime that is called illegally parading inside the Capitol because they're these minor offenses, the sentences handed down so far have mostly been fairly lenient.

I would say most folks who have been charged with these petty offenses have not been sentenced to jail or prison time at all. Some are getting like two weeks. The maximum amount that judges can sentence defendants for in these petty offenses is six months. Again, they do this calculus. Did the defendant have like a really aggressive social media presence with regard to the Capitol attack?

Did they show remorse in the wake of the attack? Were they honest with investigators while the inquiry into them was going on? All of those factors figure into how much time they end up getting. Now once you move away from the petty offenses into much more serious conduct, the penalties have become more serious so there have been almost 300 people charged with assaulting police officers, and those, at least, so far have resulted in the stiffest penalties to date.

The highest sentence handed down thus far for a January 6th case is 10 years in prison and it was given to a guy who was a former New York City police officer who attacked cops outside the Capitol with a flagpole. We haven't yet seen the sentences for the complex conspiracy cases such as the one you mentioned Stewart Rhodes of the Oath Keepers militia. As the more sophisticated complex and serious cases go to fruition, we will see more serious sentences handed down.

Melissa Harris-Perry: It is certainly debatable whether or not harsh sentencing deters criminal activity but let's posit for a moment that it does. Are these the kinds of sentences likely to deter this action from happening again?

Alan Feuer: Well, look, no one has a crystal ball, but as part of the sentencing process. Judges have to take into account deterrence and they break it down into two categories, specific deterrents and general deterrents. Is this defendant likely to commit another crime going forward and what effect will a sentence have generally speaking in this area of crime? These questions are absolutely positively taken into account and judges actually--

In the process of a sentencing, there is a moment when the judge gets to say their peace before handing down sentences and almost to a person, these federal judges in Washington, because all of these cases are being adjudicated in federal district court in Washington have taken a moment, taken a breath, and said, wow, what happened on January 6th was a stain on our democracy. It was an unprecedented event in our history and it can't be permitted to happen again, and they've said some remarkable things from the bench.

Just the other day, a federal judge was sentencing a defendant and said, "What was it about President Trump that led you there?", and several judges have gone in that direction and they've said like, Hey, you are a cog in the wheel. What about the people who persuaded you by whatever means to go to the Capitol and to commit these crimes, will they ever be held accountable? That too has been folded into the conversation, the larger conversation that surrounds these sentences.

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Melissa Harris-Perry: All right, now. We have to take a break, more of this conversation in just a moment. We're back with Alan Feuer, a criminal justice reporter at the New York Times. We're talking about the two-year anniversary of January 6th. As you bring up the moment when the judges sort of have their opportunity to say their peace, in looking at, and you've been following this very closely, in looking at the sentences that are handed down, and in those moments of the judges from the bench. Has there been any meaningful difference between how judges are responding to these defendants, depending on whether that judge was appointed by a Democrat, Republican, and maybe specifically by President Trump?

Alan Feuer: I would say this writ large, no, surprisingly. There hasn't been that much difference. Most of the judges, whether appointed by Republicans going back to Reagan say, or one of the Bushes or Democrats, have really taken a very hard line on sentencing with one exception. There is one judge who was appointed by President Trump, who as a legal and philosophical matter kind of came to the conclusion that he was not going to sentence January 6th defendants who either were convicted or pled guilty to these petty offenses to any time in jail.

That was just like a decision he came to. He was the outlier, he really was. You've seen Republican-appointed judges be extraordinarily caustic in their remarks while queuing to the normal factual process of sentencing in coming up with an actual number of days in jail or prison or what have you. No, it's interesting. I think that has to do partly with the fact that the courthouse where all of these cases are being adjudicated, sits in the literal shadow of the Capitol building.

The chief judge in Washington is a woman named Beryl Howell. On the record has said that she watched the entire attack on the Capitol take place from the window of her chambers. It's like a stone's throw from the courthouse to the Capitol. You can sit in the cafeteria of the courthouse and see the dome of the Capitol. It's a very personal thing for them.

Melissa Harris-Perry: Alan Feuer is a reporter covering far-right extremism and political violence for the New York Times. Thanks for being here, Alan.

Alan Feuer: Thanks, Melissa.

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