The Justice Department has plenty of tools in its prosecutorial toolbox when it comes to holding the January 6 US Capitol rioters to account. It also has many critics who have questioned whether they are prosecuting defendants to the fullest extent of the law.

Some of the alleged rioters are facing felonies stacked upon felonies. But dozens of other alleged rioters could plead guilty to misdemeanours and walk away with a slap on the wrist.

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Former prosecutors and other legal experts told CNN that the strategy makes sense, as the department should prioritize its resources on the most dangerous of the mob participants, while securing cooperation from the more peripheral rioters to help build cases against the serious offenders.

Yet the approach has rankled some judges who are presiding over the cases, and the department's refusal so far to bring any formal sedition charges has prompted its own debate in the legal community.

Misdemeanour charges help clear the decks for going after the more dangerous rioters.

The low-hanging fruit in the Capitol prosecutions have been mob participants who entered the building but did not engage in the specific acts of violence that would warrant felony charges.

There are different types of misdemeanour charges that have been brought in these cases. A go-to charge in plea deals with non-violent offenders has been from a statute that prohibits unauthorized people from entering the Capitol to "parade, demonstrate, or picket."

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That charge also carries a six-month maximum, but some defendants who have pleaded guilty to that sole charge have gotten off with just probation, with factors like a lack of criminal history shortening the sentences of some defendants.

At a plea hearing for mob participant Jack Griffith, who pleaded guilty to a "parading" charge, DC District Court Chief Judge Beryl Howell questioned the appropriateness of the sole "petty offense."

She asked the government whether it would prevent Griffith in the future from "joining a mob, breaking into the Capitol building" and "terrorizing members of Congress."

Additionally, the Department Of Justice's reliance on the obstruction charge has also sparked a debate among outside legal observers over whether the department should be using sedition charges to get at what the Capitol riot was about instead.

Though other parts of the seditious conspiracy statute deal with plans to use force to "prevent, hinder, or delay the execution of any law," most associate the sedition statute with its language around plots to overthrow the government.