Since the first moments a mob scaled the walls of the U.S. Capitol, smashed its windows and called for the vice president to be hung, Scott MacFarlane has been on the story.
Covering the mayhem on Jan. 6, the hundreds of federal cases that followed and the profound repercussions of it all became the News4 investigative reporter’s all-consuming full-time job, often taking up 10 hours a day.
MacFarlane has produced a steady stream of Jan. 6 scoops and been recognized as a national leader in covering what he called “the largest criminal investigation in American history.”
In a 12-minute video, MacFarlane gave News4 a rundown of where the hundreds of pending federal cases stand, what he's particularly watching for and what it could mean for our country. MacFarlane, who’s worked on Capitol Hill since 2004, got personal, too, about what it’s been like to cover the desecration of a place he called "hallowed ground and sacred space."
Here’s what MacFarlane said about the Jan. 6 cases and more, with light edits for length and clarity.
Why are the Jan. 6 cases worth paying attention to?
This is the largest criminal investigation in American history. In a vacuum, that's a fascinating and exhausting piece of journalism. It's also a seminal American moment that has consequences beyond the criminal cases. There are cultural and political consequences. There are calls to reinforce the security in our city. There are calls to add hundreds of millions of dollars in reinforcements to the congressional campus. The consequences are limitless. This is a full-time job, and it's going to remain one for quite some time.
"I had a little bit of survivor's guilt that I didn't have to experience the horrors firsthand like a lot of other journalists did."
What was Jan. 6 like for you?
On Jan. 6, during the peak of the pandemic, there was only limited access to media. There was pool coverage. So most of the reporters, like me, who were covering it, were doing it from home or from outside. We were kind of watching the video on television and trying to figure out what was going on inside.
I spent most of the morning emailing the few sources who I knew were in the building — the congressional staffers, trying to reach the members of Congress I know who were in there to give me some intel, some things that the public didn't otherwise know. And I had some success doing that.
Like a lot of people who were reporting on Jan. 6 from away from the scene, I had a little bit of survivor's guilt that I didn't have to experience the horrors firsthand like a lot of other journalists did.
As soon as I saw that image of an insurrectionist in the Senate chamber, that horrifying image of an insurrectionist in the Senate president's chair, I knew we had a transformative American moment. I started my coverage at that moment and haven't stopped since.
Photos: Pro-Trump Supporters Breach the Capitol Building
What are the basics on the criminal cases?
We know there were at least 800 people, according to the Capitol Police chief, who were illegally inside the Capitol that day. We're already more than two-thirds of the way there in terms of the number of charges. We are between 550 and 600 federal defendants. The number’s fluid because new charges come in each day.
Less than 10% of those charged have reached plea agreements so far. So, we have a long, winding legal road ahead. Those who have pleaded guilty overwhelmingly are misdemeanor cases.
You’ve described three main types of Jan. 6 defendants. How do the categories break down?
There are different tiers of Jan. 6 cases, and they're clear. There are the lower-level cases, as described by the FBI director. Those are people who were unlawfully in the Capitol, didn't damage anything, didn't hurt anyone. Those cases, so far, have been treated as misdemeanors. And those who've gone to sentencing, who pleaded guilty to those misdemeanors, not a one has been sentenced to prison.
There are higher-level cases as well — those who are accused of being inside the Capitol and did damage some things, or did assault someone, or did go to a particularly sensitive location, like inside the Senate chamber. We have only a small sample size regarding how they are prosecuted. Just one case is going to sentencing in that tier. That defendant got eight months in prison.
Then there's the high-level tier. This is where I'm keeping my closest eye. These are the defendants accused not only of assault and of damage, but of conspiracy, of plotting and planning, of being ready for action on Jan. 6. That's where the action is in the prosecutions. Those defendants face felony charges. Those defendants are more likely to go to trial because they're facing multi-year prison sentences. We've had one or two of those defendants plead guilty and learn their likely sentence, probably between four or five years in prison.
We have others who pleaded guilty and have agreed to cooperate with federal prosecutors. We don't know what punishment they'll likely be facing because they're going to cooperate for a while before they go to sentencing. And that's a very provocative thing. The highest-level cases, the top tier — those defendants have agreed to help. So who are they flipping on? Who are they giving up if they're already the top-tier defendants? I don't know the answer to that question. Anybody who does know isn't saying.
What makes these cases especially hard to prosecute?
First of all, there is the delta variant. COVID makes it very difficult to assemble jurors, and it is very difficult to start executing jury trials. It's unclear when we're going to start those trials.
Another factor: the evidence. Prosecutors describe this as an avalanche of evidence they're going through. It is the largest criminal investigation in American history. There are thousands of hours of Capitol security video, much of which, if not all of which, is encrypted and has to be made available. There are thousands of cellphones seized from defendants and forensically searched.
Also, there's a quarter-of-a-million tips from the public. So, not only do prosecutors have to go through all of that and organize it for themselves to be ready for trials, but they're bound and legally required to get all the evidence to defense lawyers, and defense lawyers have to equip themselves somehow to take in all this information, organize it, synthesize it and ready it for trial.
The trial dates we see at this point are in 2022. From what I'm hearing from judges, there's a lot of heartburn, a lot of concern. They may not be ready then because of the delta variant challenge and because of the evidence challenge.
What do you see regarding the defendants and women?
Some number of defendants have criminal pasts that include misogyny and verbal or physical assaults against women. It's hard to ignore that. That includes a growing number of defendants who have been accused of vulgar or threatening words against Nancy Pelosi, the House speaker. It's a common thread. Umistakable.
How much interest have you seen in the Jan. 6 cases?
This is the only time in my career in journalism where we are seven, eight months away from something and people click on it more, read more, ask me more questions and care about it more than they did days after the thing happened.
I think that's because people generally want to see justice or at least want to see the outcomes of these cases. They're troubled that they see defendants pleading guilty and avoiding jail time. They're troubled that they see the court giving permission for defendants to go on beach vacations and go to weddings while they're still awaiting their trial. And they're troubled by the possibility, if not the likelihood, of something like this happening again.
What is this like for you, personally?
It is draining emotionally, spiritually to read through what these accusations are and to watch these videos. I'm somebody who's lived in this community a long time, somebody who worked on the Hill. To me that's always been hallowed ground and sacred space. And to see it defiled still hits me the wrong way. I have the unfortunate opportunity of watching a lot more body-worn camera video and seeing a lot more surveillance videos than the average viewer. You don't really get used to that.
How are political claims about Jan. 6 affecting the defendants?
There's an awful lot of baseless political talk that continues about the 2020 election and the insurrection itself. Here's what I can say as somebody who's read through most, if not every, court filing: The baseless claims from politicians make life wildly harder for the defendants. The more Donald Trump talks about 2020 or a reemergence to office, the more difficult it is for defendants to get themselves released from jail. We've heard judges reference Trump's baseless allegations as a reason to hold defendants in jail or put significant restrictions on their release. The more baseless claims that go in the political sphere, the more difficult things get in the legal sphere for those who are charged.
"These are people who've been charged who in some cases are unapologetic, who are still dug in, that what happened was right and that they were wronged. And I don't know how to break out of that. That seems intractable to me."
What are you looking for now, and what’s next?
What happens with the far right groups, the conspirators, those accused of conspiracy and planning? What happens to them? That's the barometer of what a judge with the Justice Department is accomplishing here. If those people who are accused with conspiracy are convicted of it or plead guilty to it, what's their punishment? And what do they give up if they're pleading guilty?
If an accused Oath Keeper who's accused of bringing military gear, encrypted communication, using a military stack to breach the Capitol, of plotting and planning on social media and on Signal — if they plead guilty and agree to cooperate, what are they producing? That question is the most important thing I'm looking at among those who are currently charged.
Whose idea was it? Was it somebody’s singular idea to breach the Capitol that day?
Who's next to be charged? Who's still coming down the road? You have the sense that there are dozens, if not hundreds more arrests coming. Who's going to be among them?
Who dropped the pipe bombs outside RNC and DNC headquarters? Separate that from everything else. What an enormous story. What an enormous risk to our city and the neighbors who live there. And we don't know who did it yet.
What could Jan. 6 mean for our country?
This singular moment in American history strikes everyone. It was in a hallowed place, a special place.
These are people who've been charged who in some cases are unapologetic, who are still dug in, that what happened was right and that they were wronged. And I don't know how to break out of that. That seems intractable to me. If there are people out there hailing some of them as heroes, hailing some of those accused or charged in the insurrection as people who did right. And there are those charged who are talking to me, saying they still don't see what they did as wrong. I don't know how we get out of that. That seems to be a threat to the future. It seems to be a risk to the campus, to our city, where government remains headquartered. It’s a risk to us culturally. It's a schism. I don't see how we reconnect.