Walls

As dusk rolled across D.C., Kevin made a right hand turn at a graveyard facing the back side of a cramped neighborhood of single and two-story houses, which elbowed at the driveway to a prison.

“I had no idea the walls were so high,”

I said, getting out of our truck. 

We had arrived at the Washington, D.C. prison building housing twenty-seven men and women charged with or convicted of or appealing convictions of participating in the events of January 6, 2021 at the U.S. Capitol.

For more than three years, I have analyzed January 6.  Events.  Those charged.  The charges.  The prisons.  The judges.  The prosecutors.  Especially the prosecution.  The funneling of all the cases through the D.C. District and Circuit Courts.  The appeals.  Press coverage.  Committees.  Witness testimony.  Maps and diagrams.

In fact, Kevin and I spent yesterday and today on foot and in the truck tracing and retracing the events of that day, not only from the movement of people from the rally at the Ellipse to the Capitol, but the movement of then Acting U.S. Attorney Michael Sherwin, then Deputy FBI Director, then head of the FBI Washington Field Office, the SIOC, the watch floors, and more.  We hopped a Capitol tour.  We got through the maze of street closures since then to the RNC/DNC and the nearby metro stop.

And then, this evening, Kevin turned right at the graveyard that borders the D.C. prison, at the intersection of which, it turns out, is a nightly vigil for those incarcerated, including phone calls.  A small, dedicated, tightly-knit group of women and men waiting for the phone to ring so that those inside know they are not forgotten and can hold onto hope.

Each incarcerated person is only allotted so many minutes on the phone.  The “nightly call” to the group is actually a series of calls, carrying the voices of men to a group member’s cell phone on speakerphone, to a microphone held up next to it hooked up to an amp, which amplifies to be captured by a different group member cell phone streaming live video out to the public.

“They used to be able to see us,”

one woman explained in response to my question whether they were looking out one of the windows.  Some were moved to a different area inside the prison.  Their group on the outside was moved up the driveway half way on the outside.

For one of those phone calls, I gave a fast narrative on yesterday’s oral arguments and judicial interaction in Fischer v. U.S. at the nation’s high court.  My message was simple: all of the Justices were well prepared for oral arguments and Justices Alito and Roberts in the home stretch asked the right questions to the U.S. Solicitor General (who made every effort to avoid answering them).

The sun set while we were there.  The half moon rose and stars shone.  And at 9:00 p.m., everyone sang “The Star Spangled Banner.”

A reporter from Montreal, Canada asked me whether I thought that crimes had been committed.  I answered “Yes, traditional crimes, assault, battery, trespassing – but not §1512(c)(2).”

Whatever one thinks about January 6, the U.S. Department of Justice blew it concerning this charge.  In one of the points I expressed in my Amicus Brief in the Fischer v. U.S. case, the crime at 18 U.S.C. §1512(c)(2) was designed to go after publicly-traded corporations.  By contrast, 40 U.S.C. §5104(e)(2) was designed by that same Congress, twenty years ago, to punish individuals for crimes against the Capitol.  There are defendants correctly charged under §5104(e)(2), but that puny misdemeanor charge wasn’t enough “shock and awe.”  So the US DOJ charged with §1512(c)(2) to threaten defendants with twenty years in federal prison.  It is a misrepresentation of the statute.  And it should be a blow to public confidence in the federal prosecutors in the D.C. office and a number of the lower court judges, the analysis supporting this conclusion being also in my Amicus Brief.

Sadly, more than twenty years ago, post-9/11, prosecutors weren’t held to formally charge and try those persons the U.S. detained into Guantanamo Bay in accordance with the U.S. Constitution and Bill of Rights.  Now, we’re looking at Americans on U.S. soil. 

This train of compromising civil rights inches down the tracks.  Earlier this afternoon, while Kevin and I sat for a little while in the Gallery of the U.S. House, watching floor debates on a bill titled “The Fourth Amendment Isn’t For Sale,” I heard a representative from California – a Democrat – speak in support of the bill and use the words “If an American terrorist…”  I also witnessed several Republicans, sitting on their side of the aisle, having just spoken, themselves, applaud her – the only person to be applauded for making remarks.  Applauding the bi-partisan - maybe, but not listening closely to the words.  That’s the kind of Beltway politics that allowed former President Bush to walk this nation so far away from our values, abusing “foreign detainees and other high-value targets.”

Driving the streets of D.C., there is all manner of temporary fencing, strewn about, for no apparent purpose.  Unconnected.  Unlocked.  Metal.  Removable concrete barriers.  Removable traffic control, water-filled, orange-and-white things. 

Vestiges of January 6?  An unfulfilled after-action?  

A statute in the Rotunda, built upon smashed pieces of concrete, upon which stands the former U.S. President who said, “Mr. Gorbachev, tear down this wall.”

These randomly associated thoughts, in a week during which the U.S. House voted for and the U.S. Senate rejected impeachment articles against Secretary Mayorkas concerning walls, literal and legal.

It was as hard to leave as it was to park and get out.  Each window in which a light shone, representing a man or men in cells, whatever the crime or alleged crime they may or may not have committed.  We should, as Americans, only be able to close our own eyes to sleep, if our conviction is clear that we continue to uphold the Constitution at all times and places and concerning all peoples, no matter how quickly we would otherwise rush to judgment.