How Might the U.S. Capitol Rioters Face Justice?
Demonstrators battle with U.S. Capitol police office while breaching the Capitol building grounds in Washington, DC, U.S. (Photographer: Victor J. Blue/Bloomberg)

How Might the U.S. Capitol Rioters Face Justice?

Authorities have begun to bring charges against members of a violent mob of Donald Trump supporters who stormed the U.S. Capitol on Jan. 6, forcing Congress to halt its proceeding to formally certify Joe Biden’s defeat of Trump in the Nov. 3 presidential election. Vice President Mike Pence vowed that “those involved will be prosecuted to the fullest extent of the law,” and Biden called the episode an “insurrection.” The slow response by police and the relatively few arrests initially left observers wondering if the mob would face justice, but the charges are already rolling in.

1. What charges have been brought?

The U.S. charged 55 people with crimes stemming from the siege, Michael Sherwin, the acting U.S. Attorney in Washington, said the next day. Most face charges such as unlawful entry, though some have been accused of more serious crimes, like assault. At least 14 police officers were injured in the day’s events.

2. What other crimes did the attackers potentially commit?

Legal experts say a wide variety of crimes occurred, and prosecutors could charge individuals even if they walked away from the incident without being detained. Members of the mob could be charged with trespassing, the “willful injury of federal property,” and firearms offenses. Two explosive devices were recovered. A specific statute governs unlawful activities on the grounds of the U.S. Capitol, making it illegal to “step or climb on, remove, or in any way injure any statue, seat, wall, fountain, or other erection or architectural feature, or any tree, shrub, plant, or turf.” There are also restrictions on blocking streets, carrying a firearm or using “loud, threatening, or abusive language” on the grounds with the aim of disrupting the work of Congress. The law also prohibits anyone who is not a member of Congress from appearing on the House or Senate floor without express permission.

3. What graver charges are possible?

Charges of sedition or insurrection would require proving intent to disrupt or even overthrow the government. (A sedition conviction carries a maximum prison term of 20 years.) During the Black Lives Matter protests in June, Trump issued an executive order stating that his administration would prosecute to the fullest anyone who did harm to federal property, which carries a sentence of up to 10 years in prison. There also may be prosecutions under the Anti-Riot Act, which makes it a crime to cross state lines with the intent to incite a riot -- or even just encourage another person to riot. The government can also choose to seek prison sentences of up to 5 years for those found guilty of engaging in “civil disorder,” by impeding or attempting to impede the actions of law enforcement officers carrying out their official duties.

4. Could Trump face charges?

Possibly. There have been calls to hold him accountable for the crowd’s actions, after he told supporters earlier in the day that he would never concede the election. “He was basically encouraging people to do it,” said former federal prosecutor Jennifer Rodgers. “He’s saying they have to fight and be strong and march to the Capitol -- every step of the way he was encouraging them.” It’s not clear that a sitting president can be charged with a crime, but Trump could be charged after he leaves office. Some members of Congress have called for his impeachment, again.

5. What evidence could be used in prosecutions?

There’s a ton of evidence available to prosecutors, including forensic proof such as fingerprints. Much of the criminal activity took place on live television, providing ample footage that can be combined with facial-recognition technology to identify suspects. Cameras inside the Capitol captured the action as did the social-media feeds of rioters themselves. The Federal Bureau of Investigation has posted an online form seeking “tips and digital media depicting rioting and violence in the U.S. Capitol Building and surrounding area.” Washington D.C. police have posted photos of the siege and offered rewards for information leading to the arrest of participants. Legal experts say it’s likely that even before the mayhem unfolded, undercover investigators were prowling social media to monitor whoever was organizing it. Suspects may have postings that provide evidence of their intent.

6. Can Trump pardon the mob?

He can pardon them for any federal crimes. Trump has issued several pardons to supporters and controversial criminals. In this case, the president could even theoretically issue a blanket pardon that would apply to anyone involved in the assault on the Capitol, even if he didn’t know their names and they haven’t all been formally charged. Criminal defense lawyer Jon Sheldon said that while there is little guidance in the law, there have been other instances of presidents granting “group” pardons, including a case where the Supreme Court interpreted an 1865 pardon by President Andrew Johnson as allowing attorneys from the Confederacy to practice despite a law requiring them to swear that they never engaged in hostilities toward the U.S. If Trump were to issue a pardon, it’s likely prosecutors would file charges in some cases anyway to test the president’s authority.

7. Why did the police response create doubts about whether justice would be served?

Despite the fact that there were thousands of people on the Capitol grounds, there were no mass arrests. A two-minute video posted to Twitter by a reporter for a Canadian news outlet appeared to show dozens of people freely walking out of the Capitol through a door being held open by a uniformed police officer. In contrast, Black Lives Matter protesters were violently attacked by police during peaceful protests near the White House in June, with law enforcement officers using batons and deploying tear gas against people holding signs in parks. According to a tally by the Associated Press, more than 10,000 people had been arrested as of early June in the wake of national protests about police brutality. “We shudder to think how police departments would have responded had Black and Brown individuals stormed a government building to protest police brutality,” said Anthony Romero, executive director of the American Civil Liberties Union.

The Reference Shelf

  • A history of the U.S. Capitol Building.
  • President Donald Trump’s executive order in June “on Protecting American Monuments, Memorials, and Statues and Combating Recent Criminal Violence.”
  • A live report from inside the Capitol during the Jan. 6 riot.
  • A Congressional Research Service analysis of laws pertaining to rioting and property destruction.
  • A law professor’s examination of Trump’s threat to use the Insurrection Act of 1807 against Black Lives Matter protesters.

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