Everyone has seen Jacob Chansley.
He is one of the most recognizable figures from the Jan. 6 Capitol incursion. With a bare-chest and a tattooed torso, he wore red, white and blue face paint, donned a fur-pelt and a horned Viking headdress, and grasped a U.S. flag in one hand and a bullhorn in the other.
Iconic images of Chansley in his shaman costume made him the public face of those who entered the Capitol on Jan. 6. For this, and not anything he actually did that day, Chansley was sentenced to three and a half years in federal prison.
This was the steepest punishment so far imposed on any of the Jan. 6 participants – and it was totally unjustified, both in fact and in law.
The government conceded that Jacob Chansley had no role in organizing the events of Jan. 6, and that he engaged in no violence or property damage that day.
According to the government’s sentencing memorandum, Chansley entered through the open doors of the Capitol at 2:14 p.m. on Jan. 6 and was “among the first 30 rioters inside the U.S. Capitol building on that day”:
“At approximately 2:16 p.m., the defendant and other rioters ascended the stairs to the second floor on the Senate side of the U.S. Capitol building.5 In a clearing on the second floor, the defendant and other rioters were met by a line of U.S. Capitol Police officers who instructed them to leave the building peacefully. The defendant challenged U.S. Capitol Police Officer K. R. to let them pass, ultimately using his bullhorn to rile up the crowd and demand that lawmakers be brought out.Instead of obeying the instructions of the U.S. Capitol Police to leave the building, the defendant traversed another staircase to the third floor of the Senate side of the U.S. Capitol building. At approximately 2:52 p.m., the defendant entered the Gallery of the Senate alone.The defendant then proceeded to scream obscenities in the Gallery, including “time’s up motherfuckers,” while other rioters flooded the Chamber below.The defendant then left the Gallery and proceeded down a staircase in an attempt to gain entry to the Senate floor. There, the defendant once again encountered Officer K.R., who again asked him to leave the building. The defendant insisted that others were already on the Senate floor and he was going to join them. Officer K.R. then followed the defendant on to the Senate floor.The defendant then scaled the Senate dais, taking the seat that Vice President Mike Pence had occupied less than an hour before. The defendant proceeded to take pictures of himself on the dais and refused to vacate the seat when Officer K. R., the lone law enforcement officer in the Chamber at the time, asked him to do so. Instead, the defendant stated that “Mike Pence is a fucking traitor” and wrote a note on available paper on the dais, stating “It’s Only A Matter of Time. Justice Is Coming!”
Chansley then called others up to the dais and led them in the following prayer:
“Thank you Heavenly Father for gracing us with this opportunity … to allow us to send a message to all the tyrants, the communists, and the globalists, that this is our nation, not theirs. That we will not allow America, the American way of the United States of America to go down … Thank you for filling this chamber with Patriots that love you … Thank you for allowing the United States of America to be reborn. Thank you for allowing us to get rid of the communists, the globalists, and the traitors within our government.”
Finally, at approximately 3:09 p.m., after Chansley had spent eight minutes on the Senate floor, he shouted “Freedom!” into his bullhorn and was escorted by police from the building.
Having heard that federal law enforcement sought to make contact with him, Chansley contacted the FBI and self-surrendered without incident on January 9, 2021.
Two days later, on January 11, 2021, Chansley was indicted on six counts:
Since that day, Chansley has been held without bail, and he has remained in solitary confinement for over 22 hours per day in what his lawyer has described as a “Khmer Rouge-like protocol.”
The government argued that because the flagpole Chansley carried that day had a pointed finial at the top, he had engaged in a crime with a “dangerous weapon” – they described it as a “six-foot spear” – and therefore presented a danger to the community that required him to be held without bail.
Despite the fact, brought out at a hearing, that the finial was not affixed to the top of the pole and would have fallen off if Chansley tried to point it at anyone, the court nevertheless agreed with the government and denied bail.
Meanwhile, federal courts were releasing other Jan. 6 defendants who were charged with real crimes of violence:
For example, in U.S. v. Chad Jones, the court did not impose pretrial detention where Jones used a flagpole to bash in the window to the Speaker’s Lobby. (Ashli Babbitt was trying to crawl through this broken window when she was shot and killed by Capitol Police Lt. Michael Byrd.)
The court also released Vitali Gossjankowski, another Jan. 6 defendant who was accused of having Tased a federal law enforcement officer multiple times while trying to access a restricted part of the Capitol allegedly causing the officer to suffer a heart attack
Same with defendant Mark Leffingwell, who was charged with pushing past a wall of law enforcement officers who were attempting to keep people out of the Capitol and repeatedly punching an officer.
The list goes on.
But Chansley’s case has always been different. Indeed, in his order denying Chansley’s pretrial release, Judge Lamberth described him as the “mascot of QAnon.”
And it was because of that, more than anything else, that resulted in Chansley’s outrageous treatment and sentence at the hands of the U.S. government.
On September 1, 2021, Chansley executed a written plea agreement to the second count of the indictment – Obstruction of an Official Proceeding – in violation of 18 U.S.C. § 1512(c)(2), a crime that carries a statutory maximum of 20 years’ incarceration (and one whose unconstitutionality as applied to the Jan. 6 defendants I wrote about here).
In connection with his guilty plea, Chansley signed a written statement of facts that had been drafted by the prosecution and that included the narrative stated above.
The court then adjourned the case to Nov. 17 for sentencing.
In the federal system, criminal sentences are determined in the first instance by the U.S. Sentencing Commission’s Sentencing Guidelines. The defendant’s crime of conviction dictates a base offense level that can be increased or decreased based on certain aggravating or mitigating factors.
Points are then calculated based on the defendant’s criminal history.
Once the offense level and points are identified, a sentencing grid with the levels listed on the y-axis and criminal history points listed on the x-axis is used to determine the range of sentences the judge can choose from. Here is a copy of the sentencing table published on the U.S. Sentencing Commission’s website:
The judge can impose a sentence anywhere within the guideline range without having to justify the decision. If, however, the judge wants to sentence a defendant above or below the guideline range, he must explain his reasons on the record for doing so.
Under the sentencing guidelines, the base offense level for Obstruction of an Official Proceeding is 14.
But the federal prosecutors in Chansley’s case argued that two aggravating factors elevated his offense level.
First, the prosecutors maintained that Chansley used “threatening language towards lawmakers” and left a threatening note for the Vice President. They claimed that this triggered an 8-level enhancement under Section 2J1.2(b)(1)(B) of the guidelines.
Second, the government asserted that an additional three-level enhancement was warranted under Section 2J1.2(b)(2) of the sentencing guidelines because Chansley’s offense “resulted in substantial interference with the administration of justice.”
Because Chansley accepted responsibility for his actions, he was entitled to a three-level reduction in his offense level pursuant to guideline Section 3E1.1.
After doing the math, Chansley’s offense level came out to 22.
With a total offense level of 22 and a criminal history category of I, Chansley’s guideline imprisonment range was between 41 to 51 months.
The government requested that Chansley be sentenced to 51 months, but Judge Lamberth sentenced him to the bottom of that range – 41 months. A copy of the judgment of conviction can be found here.
The problem is, neither of the level enhancements urged by the government and adopted by the court were appropriate.
To begin, the government’s assertion that Chansley used “threatening language towards lawmakers” misstated the applicable standard. To justify an 8-level enhancement under Section 2J1.2(b)(1)(B), a defendant must “threaten to cause physical injury to a person.”
That didn’t happen.
To be sure, Chansley admitted that when he was met by U.S. Capitol Police officers on the second floor of the Capitol, he “us[ed]his bullhorn to rile up the crowd and demand that lawmakers be brought out.” He also acknowledged that he declared to a nearly empty Senate Chamber occupied by only a handful of rioters that “Mike Pence is a fucking traitor!”
But neither of these statements was a threat, let alone one of physical injury necessary to trigger the 8-level bump-up.
Moreover. the Supreme Court has held that the First Amendment protects “vehement, caustic, and sometimes unpleasantly sharp attacks” as well as “threats of vilification or social ostracism.” Chansley’s remarks were therefore constitutionally protected and the government was not allowed to punish him for them.
Chansley’s written note to Vice President Pence was not a closer call. That note read, “It’s only a matter of time. Justice is coming!”
Here’s a copy of the note from the government’s sentencing memorandum:
“Justice” can take many forms and is susceptible of several innocent interpretations – electoral justice at the ballot box, civil or criminal justice in the courtroom, or (as Chansley was probably thinking) karmic justice. In any case, even if Chansley meant the word “justice” to mean physical violence in the abstract, the Supreme Court explained in U.S. v. Williams that “abstract advocacy of illegality” is constitutionally protected speech.
Indeed, it was not inadvertent that federal prosecutors did not charge Chansley with violating 18 U.S.C. § 871 – the federal criminal statute that proscribes threatening to inflict bodily harm upon the Vice President. The facts simply did not support such a charge. And, for the same reason, they did not support the sentence enhancement.
Further, the 8-level enhancement also would only apply if Chansley had scribed the note with the intent to obstruct the administration of justice.
But the phrase “administration of justice” is defined in the commentary to the sentencing guidelines as including “felony investigations” “indictments,” “verdicts” and “judicial determinations” – in other words, proceedings that part of or antecedent to a court proceeding.
The certification of electoral votes by Congress is a purely legislative procedure, however, and has nothing to do with our civil or criminal justice system.
For the same reason, the 3-level enhancement under Section 2J1.2(b)(2) – a bump-up that applies when the charged crime “resulted in substantial interference with the administration of justice” – was equally inapplicable.
“Without these enhancements, Chansley’s offense level would have been a 12. Given his lack of criminal history, Chansley’s guidelines range thus would have been between 10 to 16 months.”* And because Chansley had been in custody for nearly one year, he likely would have been released with time served.
Instead, he’s going to spend the next several years in federal prison.
Earlier on in the case, in one of his filings with the court, Chansley’s lawyer said:
“It is no secret the Defendant’s image has become the media driven face of January 6. It is no secret the Defendant’s costume, fur, horns, bare tattoo ridden torso, and iconic dental perfection has caused Defendant to be the go-to image, day-in-day-out, for traditional and social media throughout the world when reporting, discussing, castigating, pitying, insulting, parodying, demonizing, supporting and explaining the events and people involved in the events of January 6.”
Exactly right.
It’s apparent that Biden’s DOJ viewed Chansley as the personification of Jan. 6 itself. That’s why, instead of recommending a sentence that actually fit the evidence, Chansley’s prosecutors urged that the court adopt baseless sentencing enhancements.
And Judge Lamberth went along with it. At sentencing, Lamberth reportedly said of Chansley, “He made himself the image of the riot, didn’t he? For good or bad, he made himself the very image of this whole event.”
Lamberth shamefully allowed media coverage, rather than the facts of the case and the applicable law, to shape his rulings regarding Chansley’s pretrial detention and sentence.
Jacob Chansley said that justice was coming. Boy, was he wrong.
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* These sentences were corrected to reflect the sentencing guidelines and enhancements number of months.
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