I have seen so many people (including folks on #lawtwitter) comparing what happened at the Capitol yesterday with the violence and property damage that happened in some cities during protests last summer.

Let me explain what is wrong with that analogy . . . . .
To clarify -- my disagreement is not with those who are pointing out that law enforcement didn't respond with the same level of force and arrests at the capitol as it did during BLM protests.

That comparison deserves to be drawn and it raises some very important questions.
My disagreement is with those who are saying that what happened at the Capitol yesterday is so similar to what happened during protests this summer, that people's reactions ought to be similar--a suggestion that those reacting more strongly now are hypocritical.
Here's one example of someone (a law professor) making the argument. But I've seen it plastered across the site all day, it keeps cropping up in my mentions, and so I want to respond.
There are a number of things that distinguish what happened at the Capitol from what happened during BLM protests. The most obvious is the reason that people protested---some protested about factually false claims about election fraud; others about real police shootings.
It should go without saying, but the reasons that people act are incredibly important in judging their actions. People who do bad things for bad reasons deserve more condemnation than people who do things for good reasons.

This is a pretty basic social and legal concept.
There is another, more important difference between the reasons for action.

The people at BLM protests were trying to get changes made to policing practices.

The people at the Capitol were trying to stop Congress from certifying an election.
Changing policing practices so that fewer civilians get shot is a totally legitimate aim. If we were to accomplish it through a court decision or legislation, I don't think people would object. In fact, most Americans would likely welcome it.
In contrast, stopping the certification of an election is not a legitimate aim. It would be a major problem if it were accomplished via a court decision. And it's even worse to try and do it via force or intimidation.
But the reasons for the actions we saw is not the only important difference.

There is also a huge difference in how those actions came about--specifically the role that public officials played in the turmoil and protests that led to the storming of the Capitol.
The anger towards and distrust of police in Black communities didn't come from public officials. It came from people in those communities. In fact, much of the anger was directed at the public officials in those cities. Folks blame Democratic mayors for police violence.
And while some officials in Democratic cities expressed solidarity with the protestors, the mayors were not encouraging people to take to the streets and protest. The opposite in fact. They wanted people to stay home.
Contrast that with how Pres Trump and many other members of the GOP have reacted to the 2020 election:

They have been leading the charge to challenge the result.

They have been engaging in rhetoric that talks about violence and unrest.

They fanned these flames.
The President himself held a rally in which he literally encouraged people to march to the Capitol. He told them that the Republicans in Congress were being weak, and they needed to show them to be bold.

He told them to march to the Capitol, and he repeated it multiple times.
Did Joe Biden, Nancy Pelosi, Chuck Schumer, or any one of a similar stature tell people to take to the streets this summer?

Did they give the protestors a fist pump like Josh Hawley did, as he was heading in to try and overturn the election using frivolous legal arguments?
The answers to those questions is obviously "no"

Contributing to a bail fund or saying that you understand why people are angry--things that folks on the right criticized Dem officials for--is obviously not the same thing as encouraging people to take to the streets.
So were there protests this summer at which some people broke the law?


But what we saw at the Capitol yesterday and what happened over the summer obviously aren't analogous.

And to pretend otherwise seems like it is minimizing yesterday's attack on democracy.
Update: I had a chance to flesh these ideas out a bit more on @OpenMindTV with @heffnera


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More from @CBHessick

6 Jan
David has a great point--a lot of people's intuitions about whether DAs have a duty to bring all plausible charges are often bound up in their policy preferences about the particular types of charges/defendants.
To be clear, people often draw a distinction between a prosecutor's decision not to bring charges in an individual case and a decision not to charge a certain category of cases.
These arguments are reminiscent of the arguments we saw in the debate over Obama's DACA policy.
The argument essentially boils down to the idea that prosecutors' executive power gives them discretion in individual cases, but decisions not to prosecute entire categories of cases are akin to decriminalization and so they infringe on the legislative power.
Read 6 tweets
18 Dec 20
Let’s talk about this story. It discusses a NJ bill that is designed to make sentencing less harsh. The bill is being held up because a lawmaker introduced an amendment that would eliminate the mandatory minimum for one type of corruption. nytimes.com/2020/12/17/nyr…
First, let's talk about the framing of the story. The lede is about how the lawmaker who introduced the amendment has a girlfriend whose son is facing corruption charges. The story minces no words: It says the amendment was added specifically to help that man.
The idea of powerful people helping each other escape punishment is a powerful one. It is the stuff of headlines and outrage, and so I'm not surprised that this is how the story is being framed.
Read 25 tweets
29 Nov 20
The President is on Fox News right now saying that maybe the FBI and the Department of Justice were involved in the supposed election fraud in the 2020 election.

When will this nightmare end?
Update: He says "people keep asking" DOJ whether they are looking into all of the fraud allegations, and they have been told "yes, we are looking"
But "no one" has told him that they've arrested anyone who has done anything wrong.
Now Trump's asking why DOJ still hasn't done anything to prosecute Jim Comey, Andrew McCabe, and John Brennan.

I'm no fan of Bill Barr's, but this bizarre interview suggests that he has been resisting an awful lot of pressure from this president to persecute political enemies.
Read 4 tweets
28 Nov 20
One thing that I really like about traditional legal scholarship is that it asks the writer to deal with legal issues in the abstract.

That helps to ensure that legal principles and generalized analysis drive conclusions rather than just situational facts.
That's why, when it comes to the hot topic of the day, I am always eager to read the opinions from legal scholars who wrote about the issue before it became enmeshed with present-day politics
They are less likely to let the situation in which the issue arose affect their analysis
That's certainly not always possible. Some topics are just too obscure to have warranted the time and effort that is required to write traditional legal scholarship. (Hello, GSA ascertainment!!)

But for plenty of other topics there's at least a law review article or two.
Read 7 tweets
28 Nov 20
It’s really hard to turn down interviews from national media outlets. But I think those of us who are being interviewed because of our expertise have a professional obligation not to give those interviews when the topic is outside our area of expertise.
And when I say “it’s hard,” I mean it really sucks. And I haven’t been perfect on this front.

But I feel a bit better when I give the reporter/producer the name of someone who *is* an expert—especially if that person is more junior & doesn’t always get a lot of recognition.
Even that isn’t always enough to make me feel better, so I’ll tell the reporter to tell the other person I recommended them.

“Seriously, use my name,” I’ll say.

It lets the person know I value them. And it also lets me tell *someone* that I gave up a chance at the spotlight.
Read 4 tweets
13 Nov 20
Fascinating @rachelweinerwp article about the court battles of a judge in Alexandria who is being sued by both the local prosecutor and the local public defender.
The judge and the local prosecutor @parisa4justice are clashing, in part, because VA gives prosecutors less control over charging decisions than a lot of other states. For many crimes, police make charging decisions, and prosecutors have to move to dismiss.
A bill was introduced in the VA legislature that would have changed this arrangement, giving VA prosecutors more power to dismiss charges without having a judge weigh in.

It looks like that legislation stalled. Do folks in VA know more? lis.virginia.gov/cgi-bin/legp60…
Read 7 tweets

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