At a recent sentencing hearing, Chief Judge Beryl Howell of the federal district court in Washington, D.C chastised the Department of Justice for under-prosecuting the insurrectionists who stormed the Capitol on January 6. As Chief she noted, DOJ may pay lip service to the gravity of the violent Capitol takeover, but the department has prosecuted the insurrectionists as if they were merely slightly rowdy trespassers—precisely the narrative that Trump and his supporters promote. In Chief Judge Howell’s words:

No wonder parts of the public in the U.S. are confused about whether what happened on January 6 at the Capitol was simply a petty offense of trespassing with some disorderliness, or shocking criminal conduct that represented a grave threat to our democratic norms. . . Is it the government’s view that the members of the mob that engaged in the Capitol attack on January 6 were simply trespassers? Is general deterrence going to be served by letting rioters who broke into the Capitol, overran the police . . . broke into the building through windows and doors . . . resolve their criminal liability through petty offense pleas? . . . In all my years on the bench, I’ve never been in this position before, and it’s all due to the government, despite calling this the crime of the century, resolving it with a . . . petty offense.

DOJ’s consistent approach of under-charging the insurrectionists, and proposing absurdly lenient sentences like home confinement (which other judges have rejected in favor of actual time behind bars), fails our democracy in multiple ways. It helps support Trump’s narrative of the horrific events of January 6. It conveys, as Chief Judge Howell noted, that anyone contemplating an assault on the Capitol in the future need not fear serious consequences. And the fact that DOJ is unwilling to properly charge the individuals who raided the Capitol, in some cases with intent to kill Members of Congress, signals that Garland’s DOJ has no intention whatsoever of building a case against those at the highest levels who incited, organized, facilitated, and promoted that insurrection.