The January 6th Capitol attack, while having lasted some eight hours, did not end on the day in question. The effects of this attack have been felt into 2021 and will continue, most likely, for years to come.

The U.S. Department of Justice (DOJ) has arrested over 700 persons for a variety of crimes, including assault upon police officers or media reporters, illegal entry upon a federal building, obstruction of a federal proceeding, and conspiracy. The Congressional investigations into the January 6th attack have been steadily proceeding with most expecting an official “final report ahead of the 2022 midterm elections”. Meanwhile, the American public is still rather split over what occurred and the level of culpability that rests with then-President Donald Trump.

Of those charged in the attack, many (some 40%) were seemingly well-to-do persons, small-business owners, lawyers, doctors, and accountants. Another rather unsettling profession amongst the attackers was active, retired, and reserve entities of the U.S. Armed Forces.

According to CNN, in early February of 2021, of the “first 150 people to be arrested and have records released for federal offenses… 21 of the 150, or 14%, are current or former members of the US military”. Last month, in a more recent analysis by CBS, the news organization found “at least 81 current or former service members face charges and are accused of participating [in the 2021 Capitol attacks]” with five of those being actively serving members of the Armed Forces. Among these veterans, one served in the Marine Helicopter Squadron One (which transports the President), another was an active-duty Psychological Operations Officer, while another was an Army Reservist and Navy contractor with a security clearance. Many others served in intelligence or special operations capacities.

One of the more notable cases is that of Sergeant 1st Class Jeffrey A. McKellop. While it is clear that simply being a member of the military, McKellop’s case is different given he was a Green Beret.

According to the ArmyTimes in March of 2021, McKellop served in the 3rd Special Forces Group before leaving in 2010 after a twenty-three-year career, fifteen of those in Special Operations, and was awarded three Bronze Stars among other decorations. McKellop later worked as a military contractor with State Department and CIA contracts, including working in Iraq.

While McKellop never entered the Capitol building, his actions were extremely violent. According to the DOJ’s indictment, he was charged with twelve counts of assaulting, resisting, and impeding certain officers with a dangerous weapon and inflicting bodily injury, engaging in physical violence with a deadly weapon, disorderly conduct and civil disorder, and disorderly conduct on restricted grounds.

The DOJ also released a Statement of Facts which describes McKellop’s actions. The FBI agent investigating the case describes how McKellop assaulted a Captain with the Metropolitan Police Department (MPD) in which the Captain was assaulted by a “blunt object, later identified as a flagpole, and resulted in a laceration near the left eye of [the MPD Captain]”. The Agent further found “that three other MPD officers (“MPD Officer 1,” “MPD Officer 2,” and “MPD Officer 3”), stationed in the same vicinity… were physically assaulted by the same subject involved in the [first] assault”.

Not only this but additionally, it has been found that McKellop can be found on video physically pushing an officer as groups try to further access the Capitol grounds while also “attempting to grab the riot control spray canister of [an] MPD officer in a lieutenant’s uniform” and hurling a bottle at police officers.

The flagpole carried by McKellop was also adorned with “a “Blue Line National” flag and a thirteen-star “Betsy Ross” flag embossed with the words “Trump. Keep America Great” on it”.

McKellop’s involvement in the attacks was uncovered quite quickly, with him being arrested on March 17th, indicted on March 31st, and finally pled not guilty on April 12th. In October, McKellop’s lawyers argued for pretrial release and home detention on the grounds that “not knowing when he is going to go to trial has taken a huge toll on McKellop psychologically — especially because he is unsure of when he is going to be able to see his children again”. In spite of this, Judge Carl J. Nichols denied this.

In late November, it was uncovered by a reporter with NBC’s WRC-TV station in Washington D.C. that McKellop may be offered a plea bargain. This is a major issue for the legal system, from a public standpoint. Offering plea deals for crimes is something that the American legal system is built upon and largely operates under. Rarely does a case go to trial and this is through the power of making plea deals and negotiating. Without this aspect, the legal system would break down and become severely unstable. However, there are times when a person’s actions necessitate a trial. The McKellop case is a prime example of that.

A former military veteran who served in one of the most storied and respected organizations of the U.S. Armed Forces took part in one of the most disgraceful, violent, and anti-American demonstrations ever seen in American history. Not only did he engage in violently illegal conduct, he additionally disgraced the entire Special Operations community and disobeyed the oath he swore when he enlisted. Like every other military veteran who took part in the 2021 Capitol attacks, they betrayed their oaths of enlistment and commissioning and betrayed all that the U.S. Constitution presents.

Providing plea deals for military veterans who are charged in the 2021 Capitol attacks is a poor tactic for any lawyer or judge. In the eye of the public, providing a plea deal to a person for reprehensible actions is akin to a “pass” for criminal conduct because of a myriad of reasons. Such examples can be seen with the Lori Loughlin plea in the College Admissions scandal, the pleaing of Brock Turner, and the 2018 deferred adjudication of a Baylor University student who drugged and raped a sophomore. These cases showed a different kind of punishment for those with wealth or celebrity or in some way holding privilege.

In some criminal proceedings and plea deals, one’s military service can be a mitigating factor. However, given the conduct and rationale behind the 2021 Capitol attacks, one’s military service should be an aggravating factor. For all intents and purposes, those who took part in the Capitol attack were insurrectionists and attempting a coup.

Those military officers and enlistees, either active, retired, or in the reserve forces, who took part in this coup are no different from the military officers who left the U.S. Army and joined the Confederacy in 1861. As such, given their actions, they should be held to the highest possible standard for the law and given strict and harsh sentences. Given the fact that many plea deals often result in lenient sentences, it is clear that perhaps applying a plea deal to military veterans in Capitol attack cases may not be the best course of action from a legal or public perspective.

Alan Cunningham is a Senior Research Fellow with the think tank Quo Vademus and is a PhD student at the University of Birmingham. He is a graduate of Norwich University and the University of Texas at Austin. His areas of expertise are Latin America, Cold War history, and intelligence studies.

Suggested citation: Alan Cunningham, Extremist Operators: The Need to Reject Pleas from Military Veterans in the 2021 Capitol Attacks, JURIST – Professional Commentary, January 10, 2022, https://www.jurist.org/commentary/2022/01/cunningham-alan-military-veterans-pleas-2021-capitol-attacks/.

This article was prepared for publication by Viraj Aditya, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org