Justice Department, FBI debate not charging some of the Capitol rioters - The Washington Post

6, according to multiple people familiar with the discussions.

That debate comes at a time when officials are keenly sensitive that the credibility of the Justice Department and the FBI are at stake in such decisions, given the apparent security and intelligence failures that preceded the riot, these people said, speaking on the condition of anonymity to discuss legal deliberations.

Federal officials estimate that roughly 800 people surged into the building, though they caution that such numbers are imprecise, and the real figure could be 100 people or more in either direction.

Among those roughly 800 people, FBI agents and prosecutors have so far seen a broad mix of behavior — from people dressed for military battle, moving in formation, to wanton vandalism, to simply going with the crowd into the building.

Due to the wide variety of behavior, some federal officials have argued internally that those people who are known only to have committed unlawful entry — and were not engaged in violent, threatening or destructive behavior — should not be charged, according to people familiar with the discussions.

There are a host of other factors complicating the discussions, many of which center not around the politics of the riot, but the real-world work of investigators and prosecutors, these people said.

“There is absolute resolve from the Department of Justice to hold all who intentionally engaged in criminal acts at the Capitol accountable,” Justice Department spokesman Marc Raimondi said in an email.

To that end, the FBI has already found worrying linkages within such extremist groups as the Proud Boys, Oath Keepers, and Three Percenters, and is looking to see if those groups coordinated with each other to storm the building, according to people familiar with the investigation.

But even as Justice Department officials look to bring those types of cases, they privately acknowledge those more determined and dangerous individuals may have operated within a broader sea of people who rushed through the doors but didn’t do much else, and prosecutors will ultimately have to decide if all of those lesser offenders should be charged.

Investigators also expect that some of those charged in the riot will eventually cooperate and provide evidence against others, and that could change their understanding of what certain people said or did that day, these people said.

Nevertheless, these people said, some in federal law enforcement are concerned that charging people solely with unlawful entry, when they are not known to have committed any other bad acts, could lead to losses if they go to trial.

I find it strange anyone would suggest it be done anywhere else,” a person familiar with the investigation said, speaking on the condition of anonymity to discuss an internal debate.