DOJ’s politicized double-standard for prosecuting protesters

The Biden Justice Department has charged Ryan Kelley, a serious Republican candidate for governor of Michigan, with four misdemeanor charges arising from his alleged presence at the Capitol riot on Jan. 6, 2021. Here is the sworn FBI complaint describing the probable cause for Kelley’s arrest, filed in Washington, D.C., federal court.

I carry no brief for Kelley. If the complaint’s allegations are true, he may have joined a crowd of people in “assaulting and pushing past law enforcement officers.” We have to say “may have” because the complaint hedges on this point, observing that an ambiguous image “likely” shows Kelley joining people in these activities. But assuming he engaged in that kind of conduct, then he would not be a peaceful protester — although, having been a federal prosecutor for two decades, I would note that if the Justice Department had strong evidence that Kelley used force against police, prosecutors would have charged him with serious felonies, not mere misdemeanors.

My point here goes to the Justice Department’s dereliction in refusing to prosecute left-wing, pro-abortion activists (i.e., the Democrats’ political allies) for protesting at the homes of Supreme Court justices, notwithstanding that federal criminal law (Sections 1503 and 1507) prohibits it.

The misdemeanor charges lodged against Kelley are pled under Section 1752, which makes it a crime to enter or remain in “any restricted building or grounds” unless one has been given lawful authority to do so.

The Biden Justice Department rationalizes that because the Supreme Court protesters haven’t engaged in violence, they shouldn’t be prosecuted. But the Department of Justice has charged Kelley even though violence is not a necessary component of the crime.

Kelley is being prosecuted for such activities as entering and remaining on the Capitol grounds. It makes no difference whether one uses force while doing so. Federal law makes the Capitol grounds a restricted area. It was in particular restricted on Jan. 6 because then-Vice President Mike Pence was present there. As the statute elaborates, if the president, vice president or “other person protected by the Secret Service” is present, even just temporarily, in a restricted area, it is a crime for someone to come on the grounds without legal authorization.

Again, it doesn’t matter whether a defendant never assaults, intimidates or just approaches the protected government official. The Justice Department’s position, supported by the statute, is that merely being present under those circumstances carries too much of a potential threat to safety and too much risk that government operations will be impeded.

Therefore, people who have engaged in the conduct in which Kelley allegedly engaged are being charged — not just a few of them but hundreds of them.

Look at what the Justice Department and the FBI did here. In connection with Jan. 6, federal investigators have spent 18 months poring over tens of thousands of video images, tips from known and anonymous sources, and cell-site data subpoenaed from telecoms (which, by monitoring where a cell phone was carried, can prove that a person was in a location, such as the Capitol grounds, on a particular day).

Hundreds of those who have been identified as present on the Capitol grounds on Jan. 6 did not engage in violence. No one alleges that they were anything other than peaceful protesters. (I am not talking here about the many others, out of the more than 800 defendants charged, who assaulted police or took other violent action.) Yet, the Biden Justice Department does not say, “If they didn’t commit acts of violence, leave them alone.” Instead, the Justice Department has labored mightily to identify every person who could be identified and dragged many of them from their homes around the country — such as in Michigan, Kelley’s home — all the way to Washington, to face misdemeanor trials.

Because there is so much serious crime in America, the Justice Department ordinarily does not bother with misdemeanors. But it has decided it must make an example of pro-Trump demonstrators, regardless of whether they used force.

Well, what about the protesters at the homes of Supreme Court justices? Scads of relevant video images are available. It would be easy to identify those who were illegally present. Why does a justice, such as Brett Kavanaugh, have to be the target of an attempted murder in the middle of the night at his home, where he lives with his wife and two young children, before Attorney General Merrick Garland will deign to enforce the law?

Unlike Congress, whose proceedings were obstructed on Jan. 6, the Supreme Court is a non-political branch of government. Section 1507 makes it a crime to protest at the homes of not only judges but also jurors and witnesses in federal cases. That’s because our constitutional system insulates judicial proceedings from politics. There is no free-expression right to influence court cases. Violence is not our “red line” when it comes to the judiciary.

To put it another way, it is a crime to be present in a restricted area where a Supreme Court justice resides for even more obvious reasons than it is a crime to be present in a restricted area where Congress meets, and where officials protected by the Secret Service occasionally visit. Illegal presence near justices’ homes not only creates a patent threat to the safety of the justices and their families; it creates a severe risk that court cases will be decided based on fear and intimidation, rather than the rule of law.

The Biden Justice Department is aggressively prosecuting the people who were unlawfully present at the Capitol but won’t touch the people unlawfully present at the justices’ residences. This has nothing to do with violence. The only distinction is that those unlawfully present at the Capitol on Jan. 6 are the Democrats’ political enemies, while those unlawfully present at the homes of the justices are the Democrats’ political allies. 

As to the latter, Biden administration officials, like their fellow Democrats and progressives, evidently are fine with intimidating the justices if that’s what it takes to prevail in the Dobbs v. Jackson Women’s Health Organization abortion case.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.