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Horowitz: Federal judge overseeing J6 cases announces retirement, no interest in presiding over 1,000 more cases

Op-ed
Olivier Douliery/Getty Images

We all knew this was coming, but in our hearts we were praying the persecutions would finally end. Anyone who merely stepped foot into the Capitol (and a few who didn’t) was charged and treated 1,000 times worse than anyone else for commensurate crimes. Now, in a bombshell revelation, Judge Thomas Hogan, one of the main D.C. district judges overseeing the J6 cases, announced in a conference call with defense attorneys that he is suddenly retiring. He further said that there are 1,000 additional cases coming down the pipeline from the DOJ (thanks to McConnell giving the department more funding), and he has no interest in presiding over them for another four to five years.

This is quite the revelation for the two-year anniversary of the event that now appears to be more of an FBI provocation and Capitol police misfiring on crowd control than an insurrection, certainly not a planned one. Oh, and don’t count on one of those thousand being Ray Epps.

But what are we going to do about it? Well, ask yourself the question we should always ponder in these situations: What would the Democrats do were the shoe on the other foot? Imagine if the Trump administration rounded up every person who merely attended a BLM riot. Well, for starters, that would literally rope in several million people. Mind you, these events were often riots from the onset, not protests turned violent by some, and they occurred day after day after day. No conservative, on the other hand, dared follow up on January 6, even with a peaceful protest. But what would Democrats do?

On the federal level, they would have held up the budget bill for as long as it took for the DOJ to stop these political persecutions. Republicans, thanks to McCarthy’s refusal to fight McConnell until it was too late, kicked that leverage until the end of the year. Now Biden can trample civil liberties without any check. And no, weak hearings on the FBI won’t scare them, especially when GOP leaders refuse to even mention the persecution of January 6 protesters specifically.

But more importantly, there is no doubt that blue states would harbor all their defendants accused of a crime, especially if they were peacefully protesting. They would not allow the FBI to come into their states and grab people on nebulous crimes, and they would certainly offer legal defense help. At some point, red-state governors and legislatures will have to step up and say no, or at least assist the defendants and place roadblocks in front of federal agents engaging in Soviet-style persecutions.

Here’s why. While BLM rioters beat thousands of cops, trespassed and looted private property, and destroyed public property with impunity, even those Jan. 6 protesters who never even committed a minor offense are being indicted under 18 U.S.C. 231(a)(3). This is the statute that prescribes up to five years in prison for “Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder …”

Even before roping in the next group of protesters, this statute has already incriminated people for merely engaging in constitutionally protected assembly and speech. The dangerous phrase “incident to and during commission of a civil order” can be used to tag anyone who merely talked to a police officer during an event where other individuals in another part of the Capitol acted violently, thereby distracting them from their duty.

Thus, the plain meaning of this statute was always unconstitutional, and now that officials are applying it even against mere speech or assembly, it must be blocked with the same vigor with which the Sons of Liberty thwarted the Quartering Act.

It’s also a fundamental violation of equality under the law in relation to the right to protest. Think of all the times BLM protesters – even the ones who weren’t violent – taunted, cursed at, and filmed police officers. They could easily have been roped into this statute, because their behavior definitely impeded and interfered with their response to the civil disorder.

Consider how thousands of rioters were allowed to vandalize 1,500 buildings, destroy 700 buildings, and block streets and terrorize motorists with impunity, just in Minneapolis alone. Less than 10% of those arrested during the endless riots in Portland wound up being prosecuted. According to a report by the Major Cities Chiefs Association, more than 2,000 officers were injured in the 574 riots across the U.S. and Canada over the course of two months. Most of those who had a direct hand in those injuries were not punished, must less protesters who were incidental to it. We cannot allow these selective enforcements of an unconstitutional, vague statute that cuts to the heart of fundamental freedoms be used as a tool to round up political opponents.

To that end, state legislatures should direct attorney generals’ offices to inquire into the names of those within the state who are being investigated by the feds for January 6-related activities. Anyone being investigated, charged, or harassed by the feds under 231(a)(3) without any other evidence of having committed a meaningful crime should trigger a set of policies from the executive branch of that state to thwart the persecution at all costs. At a minimum, the states should create a legal defense fund to argue on behalf of those individuals who are clearly being targeted for their political beliefs, not for any violent actions.

Two years into the “Reichstag moment” of the Jan. 6 agent provocateur setup, Republican leaders like McCarthy still refuse to realign their position with the new facts on the ground. Rep. Tom Cole (R-Okla.), who just called for more funding to rope in even more Jan. 6 defendants, is slated to be Rules Committee chair. This latest revelation from a straight-shooting judge should be a wake-up call that we need wholesale change among national Republicans.

Even those Republicans who bought into the regime narrative until now must concede that anyone who remotely acted violent has long since been punished and almost assuredly over-punished. Any further effort to seek indictments reeks of the worst power plays in tyrannical countries. We need an effort to call out the immoral and despotic treatment of political protesters and a call for actions that reflect the spirit of how our founders dealt with similar violations of due process, legal norms, and basic human rights. But their ineptitude shouldn’t stop red states from picking up the slack and declaring, “Not in our state.”

“January 6” as a slogan no longer symbolizes what the left thinks it does, and when the discovery process of the actual trials commencing this month reveals the truth of what really happened, the political cowards will be on the wrong side of history.
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