with donald trump promising pardons for those accused on January 6 and detonating landmark criminal cases, November 5 looms over the future of the largest prosecution in American history. It might as well do on Inauguration Day, January 20, 2025.
But former federal prosecutors, federal defenders and lawyers for defendants charged with crimes related to the assault on the United States Capitol on January 6, 2021, they focus on a different date: January 5, 2026. This is the end of a federal investigation that has so far yielded more than 1,420 defendants.
“If you don't file a case by that date, the government can't prosecute you, no matter how good the case is,” said Lucius Outlaw, a former federal defender and law professor at Howard University in Washington. d.c.
“It means there's a deadline,” Outlaw told CBS News.
The general statute of limitations for federal crimes is five years, with limited exceptions for some financial crimes and theft of historic art. While federal prosecutors don't often exhaust the five-year window to file charges, the Justice Department is expected to continue to release new cases on January 6 over the next few months, potentially until January 2026.
Even though it's been 3 1/2 years since the attack, federal agents are still looking for tips. A hotline for public assistance to identify the rioters remains open. A report recently released by the Department of Justice stated that “the FBI currently has 10 videos of suspects wanted for violent assaults on federal officers, including a video of two suspects wanted for assaults on members of the media on January 6, and is seeking the help from the public to identify them.”
Several new cases have been revealed in recent weeks. Former prosecutors and legal experts said the tonnage of prosecutions and trials could require the Justice Department to use the entire five-year period to bring some charges. The crowd in the confined space of the Capitol on January 6 far exceeds the approximately 1,400 defendants who have been charged so far.
“This is the largest investigation in the history of the Department of Justice. The idea of indicting 1,400 defendants is mind-boggling,” said Rep. Dan Goldman, a New York Democrat who previously worked as a federal prosecutor.
“It's a monumental effort,” Goldman said. “You have 1,400 different defenses and 1,400 different schedules and motions and plea negotiations.” Goldman praised prosecutors for taking the time necessary to present all of the department's cases.
But some defense attorneys argue that the Justice Department is complicating its own cases by waiting so long to bring some charges. Joe McBride, a New York attorney who has represented a number of the Jan. 6 defendants, said, “Four years later, some of these people have never been back to D.C. They cut the crap out of social media . They have resumed normal life. How will the prosecutors argue that these (accused) are a danger and should be taken off the street?”
McBride and other defense attorneys have echoed arguments by Trump allies that the department has “overcharged” or chosen to prosecute too many defendants in the violation of the U.S. Capitol.
“It's gone on too long,” he said. “Do you need to prosecute everyone in the crowd? They seem to be chasing everyone.”
Trump has publicly raised the possibility of a pardon for the Capitol rioters if he wins the 2024 election. He has not named names or specified whether certain groups of defendants would be excluded from a pardon list. Nor has he publicly announced plans to order the Justice Department to end all or some of the Capitol riot prosecutions.
A CBS News review of court records shows that nearly a third of the 820 plea deals reached by prosecutors have involved felony charges. In almost 100 of the guilty pleas, the rioters have admitted to assaulting police officers.
The Justice Department declined multiple CBS News requests for comment.
Another factor is the The recent decision of the Supreme Court limiting the scope of the obstruction charges against the defendants of January 6. It could affect the ongoing trials of nearly 250 defendants accused of obstruction for their part in the January 6 attack and could also reverse cases that have already been resolved, as those convicted of violating the 'statute of obstruction or pleaded guilty could request the sentence. withdraw their pleas or ask for new trials. There are 52 cases in which a defendant was convicted and sentenced on charges where the obstruction count was the only offense, and of those, 27 are currently incarcerated, according to the Justice Department.
Goldman and other congressional Democrats have warned that Trump would likely stop the prosecutions on their knees, well before Jan. 5, 2026. Goldman told CBS News, “It would be just one of many steps that he has promised to take or has already taken to undermine our fundamental values and the rule of law.”
Some of the Jan. 6 defendants believe Trump will end their cases with pardons or commutations or by order of the Justice Department if he is returned to office.
Last month, John Banuelos of Illinois, accused of firing a gun while in the mob, told a judge at an impeachment trial: “Trump's going to be in office in six months, so don't I have nothing to worry about.”
Scott MacFarlane
