What Message Are Prosecutors Sending by Charging Paul Pelosi's Attacker With 8 State and Federal Felonies?
In addition to six state charges, David DePape faces two federal charges, each punishable by decades in prison.
In case it needs to be said (and maybe it does), hitting an old man in the head with a hammer after breaking into his home in the middle of the night is a serious, potentially lethal crime that poses an obvious threat to public safety. If that had happened to your father, your grandfather, or your husband, you would expect the assailant to receive a substantial sentence commensurate with his conduct. But if that had happened to your father, your grandfather, or your husband, the assailant would not be facing eight felony charges, including two federal counts, each of them punishable by decades in prison.
David DePape, the 42-year-old man accused of attacking 82-year-old Paul Pelosi at his San Francisco home last week, faces extraordinary charges because his victim is married to House Speaker Nancy Pelosi (D–Calif.), whom DePape allegedly planned to kidnap in retaliation for her purported crimes against the American people. Pelosi's status explains why DePape is being treated differently from defendants accused of similar conduct.
Whether you think that is just depends largely on whether you think DePape's political motivation made his actions more dangerous and therefore worthy of especially severe punishment. But if you do not buy that argument, it looks like local and federal prosecutors are sending the message that some crime victims are more equal than others, depending on whether they are related to politically powerful people.
According to the federal criminal complaint and San Francisco District Attorney Brooke Jenkins's motion to detain DePape, he broke into the Pelosis' Pacific Heights home around 2 a.m. last Friday, using a hammer to smash a window in a back door. DePape, who was still carrying the hammer, found Paul Pelosi asleep in bed and demanded to see his wife. Pelosi said she was in Washington, D.C., and would not return for several days. DePape said he would wait and indicated that he planned to restrain Pelosi with zip ties so DePape could catch some sleep. He was exhausted, he said, from carrying a heavy backpack. Police later examined that backpack and found, among other things, an additional hammer, more zip ties, a roll of tape, white rope, "one pair of rubber and cloth gloves," and a journal.
Confronted by a terrifying home invasion, Pelosi showed remarkable poise and patience, trying to keep DePape calm for nearly half an hour. He managed to call 911 at 2:23 a.m. after DePape let him use the bathroom, where Pelosi's cellphone was charging. When police arrived eight minutes later, they found Pelosi struggling with DePape in the foyer. The federal complaint says they "were both holding a hammer with one hand," while DePape "had his other hand holding onto Pelosi's forearm." DePape "pulled the hammer from Pelosi's hand and swung the hammer, striking Pelosi in the head."
Jenkins' motion says Pelosi "remained unresponsive for about three minutes, waking up in a pool of his own blood." He was taken to San Francisco General Hospital, where he underwent emergency surgery to "repair a skull fracture and serious injuries to his right arm and hands." On Monday, Rep. Pelosi said her husband "is making steady progress on what will be a long recovery process."
According to Jenkins' motion, DePape made unprompted remarks at the scene of the crime that illuminated his motivation. "I'm sick of the insane fucking level of lies coming out of Washington, D.C.," he said. "I came here to have a little chat with his wife." Regarding Paul Pelosi, DePape said: "I didn't really want to hurt him, but you know this was a suicide mission. I'm not going to stand here and do nothing even if it cost me my life. Hurting him was not my goal. I told him before I attacked him, that he's escalating things, and I will go through him if I have to."
DePape later told police he intended to take the House speaker hostage and grill her about her "lies." If she told the truth, he said, he would let her go. But if she lied, he planned to break her kneecaps. "She would then have to be wheeled into Congress," the federal complaint says, "which would show other Members of Congress there were consequences to actions." When DePape was "asked if he had any other plans," Jenkins says, he "named several targets, including a local professor, several prominent state and federal politicians, and relatives of those state and federal politicians."
In an interview with The New York Times, Frank Ciccarelli, a carpenter who employed DePape as an apprentice for several years and said he knew him well, reported that DePape had gone "down the rabbit hole" of right-wing conspiracy theories. "If you got him talking about politics, it was all over," Ciccarelli said, "because he really believed in the whole MAGA, 'Pizzagate,' stolen election—you know, all of it, all the way down the line." The Times notes that DePape had a blog that included posts "ranting about the 2020 election being stolen, appearing to deny the gassing of Jews at Auschwitz and claiming that schoolteachers were grooming children to be transgender."
The Times describes DePape, who was homeless until Ciccarelli found lodging for him, as "a disturbed man seemingly enthralled by the conspiracy theories that have portrayed Ms. Pelosi as an enemy of the country." Ciccarelli sees DePape's actions as out of character. "He did a monstrous thing, but he's not a monster," he said. "He's really decent, gentle—it sounds crazy to say gentle—but he was a very gentle soul. But he was going downhill. He went down the rabbit hole."
Regardless of his motivation or his psychological struggles, DePape should be held accountable for the "monstrous thing" he did. According to the Justice Department, that entails prosecuting him for violating 18 USC 115(a)(1)(A), which applies to someone who assaults a member of a U.S. official's immediate family "with intent to retaliate against" that official "on account of the performance of official duties." When the assault results in "serious bodily injury," it is punishable by up to 30 years in prison.
The Justice Department also charged DePape with violating 18 USC 1201(d), which applies to someone who attempts to kidnap a federal official "on account of" the "performance of official duties." That crime is punishable by up to 20 years in prison.
DePape also faces six state charges, some of which overlap with the federal charges. The state charges include first-degree residential burglary, assault with a deadly weapon, elder abuse, false imprisonment, and threatening a member of an elected official's immediate family with death or serious bodily harm. DePape faces additional punishment for using a "deadly or dangerous weapon" and inflicting "great bodily injury" while committing that last offense, and the potential penalties for the assault, elder abuse, and false imprisonment charges are enhanced by the infliction of "great bodily injury" on someone 70 or older.
The most serious state charge is attempted first-degree murder, which is punishable by life imprisonment. Prosecutors allege that "the attempted murder was willful, deliberate, and premeditated"; that it involved "a deadly or dangerous weapon"; and that it "inflicted great bodily injury" on a victim who was 70 or older. All told, Jenkins said, DePape faces 13 years to life in prison under state law.
The attempted murder charge seems like a stretch. Judging from the account in the federal complaint, DePape's assault on Paul Pelosi happened in the heat of the moment during their struggle over the hammer. The complaint says DePape "stated that he pulled the hammer away from Pelosi and swung the hammer towards Pelosi." DePape "explained that Pelosi's actions resulted in Pelosi 'taking the punishment instead.'" While that indicates the assault was deliberate, it does not necessarily mean DePape intended to kill Pelosi. Even according to Jenkins, DePape said "hurting him was not my goal."
In any case, state and federal prosecutors are charging the assault as five different crimes, two of which hinge on Nancy Pelosi's status as an elected official. They are also effectively charging his break-in as two different crimes: burglary and attempted kidnapping of a U.S. official. The latter charge likewise is possible only because of Pelosi's position.
The state and federal charges involve somewhat different elements and two levels of government, which dooms any argument that the dual prosecutions violate the Fifth Amendment's ban on double jeopardy as the Supreme Court understands it. Still, the multiplicity, redundancy, and severity of the charges suggest that prosecutors are trying to make a statement about politically motivated violence amid fears that it has become increasingly likely because of bitter partisan divisions and loony beliefs like DePape's. That statement, aimed at a threat much larger than the one DePape himself posed, is not necessarily consistent with the justice that prosecutors are obliged to seek in this particular case.