Mr Cruz told HuffPost that people who "assaulted a police officer" should spend "a long, long time in jail”, but balked at criminal charges for participants who entered the Capitol but did not harm anyone.
“If, on the other hand, the Biden administration is targeting and persecuting people for exercising political speech that is nonviolent and simply expressing their peaceful support for a political party different from that in power, that is not the purpose of our criminal justice system,” he said.
So far, 570 people have been arrested in connection to the Capitol riot. The FBI is reportedly seeking hundreds more.
While some defendants are facing conspiracy charges – particularly those involved with the Proud Boys and Oath Keeper gangs that allegedly planned to attack the Capitol – many others are facing misdemeanors like unlawful picketing.
The senator faced blowback on social media for calling the arrest of Capitol rioters persecution.
Mr Cruz's views on prosecution of protesters has been somewhat inconsistent. In June, Mr Cruz and Senator Tommy Tuberville sent a letter to US Attorney General Merrick Garland complaining that Capitol rioters are facing harsher treatment than people who protested during the George Floyd demonstrations in 2020.
“DOJ’s apparent unwillingness to punish these individuals who allegedly committed crimes during the spring and summer 2020 protests stands in stark contrast to the harsher treatment of the individuals charged in connection with the January 6, 2021 breach of the US Capitol,” the duo wrote.
It's important to note that Mr Cruz's position was not that Capitol rioters should be let off the hook, but that he wanted more severe punishments for racial justice protesters. That argument stands in contrast to his current position, which is that those who "peacefully" voice their First Amendment rights should not face prosecution.
What Mr Cruz either is not aware of, or willfully ignores, is that protesting inside the Capitol is prohibited.
In May 2019, 80 disability rights advocates were arrested for protesting outside the headquarters for the US Department of Health and Human Services. Those protesters were arrested, but none of them entered the Capitol, broke through barricades, broke windows, assaulted police officers, or tried to disrupt the certification of an election.
Mr Cruz and many of his Republican colleagues have repeatedly tried to downplay the insurrection on 6 January. The senator has a vested interest in doing so, as he led the charge to reject the electoral ballot count the day the riot occurred.
Republican Congressman Andrew Clyde suggested that the riot was no different than a "normal tour group”, despite all evidence to the contrary and images of him barring the doors of the Capitol on the day the attack occurred.
Others, like Representatives Matt Gaetz and Marjorie Taylor Greene, tried to undermine a House inquiry into the riot by holding a press conference immediately after the session ended. The conference was meant to spotlight what the lawmakers viewed as unfair treatment of Capitol rioters, but protesters forced the Republicans to flee the area.
Senate Republicans also shut down the establishment of a Capitol riot commission by voting it down during a vote.
There's little evidence suggesting the Capitol rioters are being treated any worse than any other federal defendant. Only 13 per cent were incarcerated pre-trial. That number is much smaller when compared to all federal defendants, of which 75 per cent are held before their trials begin.
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