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The prosecutors overseeing the vast investigation into the riot at the Capitol this winter have started offering plea deals to defendants, several lawyers said, a significant step in advancing the inquiry into the attack.
The plea negotiations, which have largely been informal, are in an early stage, and as of late last week, only one defendant among hundreds charged had pleaded guilty. But many lawyers have recently acknowledged having private conversations with the government and have sought to determine how much prison time their clients might be willing to accept.
“What’s going on,” said Gregory T. Hunter, who has represented several Capitol Hill defendants, “is a process of coming up with numbers that everybody hopes will fairly describe what people did.”
The extension of plea deals, even on a large scale, is typical in a legal system in which the vast majority of criminal cases never reach a jury. The likelihood that many, if not most, of the more than 400 defendants charged in connection with Jan. 6 will eventually plead guilty will have an added benefit in Washington: It will relieve the city’s federal court of the burden of conducting scores of trials at once.
The hashing out of plea deals will also force the government to grapple yet again with what has from the start been the central tension in the mass prosecution: the struggle to mete out justice on an individual level for the often intersecting actions of a mob.
This week, prosecutors said in court that they would soon be offering plea deals to four men charged together with assaulting the police in a melee near the Senate wing entrance of the Capitol. But to draft the deals precisely, prosecutors will have to determine not only which of the men did what to which of the officers, but also how badly the officers were injured.
By and large, the penalty ranges for federal crimes are set by law, although prosecutors have the discretion to ask judges to add more time to certain sentences for a variety of what are called enhancements. Defense lawyers say they expect the Justice Department will ultimately devise a standardized method for calculating plea deals in the numerous Capitol cases and establish “packages” that lay out preset offers for crimes like misdemeanor trespassing or felony assault.
But that has yet to happen, and some lawyers have complained that the haggling over pleas has felt improvisational and at times confusing — like buying a used car.
At a recent hearing for Richard Barnett, an Arkansas man perhaps best known for being photographed with his feet propped up on a desk in Speaker Nancy Pelosi’s office, prosecutors said that they had offered a deal that could result in a sentence of 70 to 87 months in prison. Mr. Barnett’s lawyer, Steven Metcalf, later said he was disappointed with the proposal and could not understand why the government was offering so much time to a man who had not broken anything nor hurt anyone inside the Capitol.
“It seems like they’re actually trying to dissuade us defense attorneys from entertaining these offers as serious,” Mr. Metcalf said. “That’s how far off they are.”
Others lawyers have taken a more generous position.
Albert Watkins represents several Capitol riot defendants, including Jacob Chansley, the so-called QAnon shaman who breached the building in face paint and a horned fur hat, carrying a spear draped with an American flag. While Mr. Watkins declined to discuss the details of his conversations with the government, he said that prosecutors — after prodding — had started treating defendants individually, not as an undifferentiated mass.
“The dialogue we originally heard was, ‘Hang everyone from the nearest tree,’” Mr. Watkins said. “But there has been a shift. Now the government’s position seems to be that a lot of these cases are something less than genuine attempts to overthrow democracy.”
The Justice Department declined to comment on how many plea deals have been offered or how the department has decided who receives them.
The negotiations over wrapping up cases before trial have come as some defendants and their lawyers have decided to fight their cases, attacking the legal viability of certain charges that many people face. At least two defendants — a Texas florist and a Florida-based member of the far-right group the Proud Boys — have filed motions to move their cases out of Washington.
The only defendant to have publicly accepted a plea deal is Jon Schaffer, a guitarist and songwriter for the heavy metal band Iced Earth who prosecutors say is also a member of the militia group the Oath Keepers. At a hearing in April, Mr. Schaffer admitted to entering the Capitol with a canister of bear spray and engaging in “verbal altercations” with police officers. As part of his guilty plea, he agreed to cooperate with prosecutors, possibly against some of the 12 other members of the Oath Keepers also facing charges.
According to court filings, at least one other Capitol defendant — Douglas Jensen, a QAnon believer who was among the first to break into the building — is in formal discussions with the government about a plea deal with a deadline to be completed next month.
While prosecutors may be having informal conversations with other lawyers and their clients, A.J. Kramer, the chief of Washington’s federal defenders’ office, which is representing dozens of defendants, said that no one on his staff had received a written offer from the government.
Still, discussions about the offers — who might get them and how much they might be — are rampant among the few dozen Capitol Hill defendants being housed together on pretrial detention in the same unit of the District of Columbia jail, said one lawyer who spoke on the condition of anonymity so as not to betray his clients’ confidence.
The jailed defendants — who are mostly those in extremist groups or who have been accused of attacking the police — have been trading legal tips with one another, the lawyer said. Some, he said, have been considering a protest plan to fire their private lawyers and try to get the federal defenders’ office to represent them, thus ensuring that the government would have to pay for their defense.
To Mr. Hunter, all of this indicates how difficult it has been to prosecute more than 400 people essentially at once. While plea deals are the best, or perhaps the only, way the system can function without overloading, the process has not been easy.
“Everyone is trying hard,” Mr. Hunter said, “but we’re pretty much making it up as we go along.”
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