The violence and mayhem at the U.S. Capitol this week were many things—an incursion, a riot, a spectacle and, many would say, a national embarrassment. But were they crimes? And if so, who committed them and how should they be prosecuted?
These questions aren’t as simple as they might appear. All the facts around the events of the past several days haven’t yet come to light, but already authorities are beginning to file charges against some of the participants. Some crimes, such as unlawful entry or assault, might be easier to investigate and prosecute, but others, like incitement and conspiracy, are incredibly complex, in no small part because one of the potential targets of prosecution is a president of the United States. What’s more, events that take place at the seat of government can wrap in constitutional questions. How should we balance the First Amendment right of citizens to protest against laws prohibiting interference in the activities of government?
So how should federal and local prosecutors go about holding people accountable for the actions of the past week? Who is ultimately to blame for the damage, whether physical or political?
We asked some of the country’s top legal minds, many of them former prosecutors, to tackle those questions. Here are their responses.
‘The big question is whether charges should be brought against those who instigated these crimes’
Laurie Levenson is a professor of law at UCLA and a former assistant U.S. attorney in Los Angeles.
Certainly, the individuals who breached the House and Senate chambers, as well as the offices within the Capitol, should be first in line to be prosecuted. There are so many crimes that could be charged, from seditious conspiracy to destruction of government property. To the extent that they assaulted federal officers, including the Capitol police, those charges should be at the top of the list, too. You can add, of course, those individuals who broke windows and doors to enter the Capitol building, as well as those unlawfully carrying and using firearms.
The big question is whether charges should be brought against those who instigated these crimes. Both the president and his high-level supporters made horribly irresponsible and dangerous remarks to the crowd. Rudy Giuliani called for “trial by combat”; Donald Trump Jr. told the crowd to send a message to members of Congress that we are “coming for you.” Even President Trump’s own remarks—both Wednesday and over the past several weeks—have encouraged his supporters to “show strength” and “take back America.” While those words may have incited many, I don’t know whether they would be enough to prosecute Trump. He would undoubtedly claim that he was only using fiery rhetoric and did not actually intend violence.
The bottom line is that Trump has moral culpability for knowingly encouraging his supporters to take whatever steps they could “to attack” the election results, but prosecuting him for sedition would be a challenge. To the extent that he and those closest to him discussed the plan to forcefully disrupt Capitol proceedings, that evidence should be used to prosecute him and anyone else who willfully caused the horrible events of yesterday. If it turns out that Trump did something like intentionally withhold calling out the National Guard or other law enforcement, that would weigh heavily in favor of making him an accomplice to the criminal acts that ensued. At that point, there would be pretty compelling evidence that he supported the violence and destruction.
‘A reckoning is needed for these anarchists’
Bradley Moss is a national security lawyer and partner at Mark S. Zaid, P.C.
Prosecution should be direct and swift. A range of criminal charges could apply—most obviously criminal trespassing and destruction of government property—and the evidence is substantial. Many of those who physically stormed the Capitol were kind enough to livestream their criminal activities. They posed for photos as they destroyed or stole government property. They provided news outlets with their names and hometowns. And in their social media posts, many even made clear their desire to foment revolution and prevent Congress from performing its duties. For them—and particularly those prominent influencers present in the riot and known to have a coordinated following—prosecutors would be well within their discretion to consider charges of conspiracy and sedition. A reckoning is needed for these anarchists.
More difficult decisions loom with respect to those who incited this riot but lacked the courage to participate in the destruction they encouraged. President Trump, Rudy Giuliani and several other speakers at the rally Wednesday morning called on the thousands of supporters present to march on the Capitol and prevent the certification of the Electoral College count. Giuliani went so far as to call for “trial by combat.” Obviously, words like these must be evaluated in the context of constitutionally protected political hyperbole, but there should be limits to how much deference is given to our political and elected leaders who incite a mob to serve a political agenda. They should be assessed for potential charges of incitement to violence and conspiracy to commit sedition.
‘Mere encouraging words would not be enough’
Renato Marriotti is a former federal prosecutor, host of the “On Topic” podcast and legal affairs columnist for POLITICO Magazine.
The insurrectionists who entered the Capitol will almost certainly be charged if they can be identified, because their actions violated a wide array of federal criminal statutes. They trespassed on a federal facility, stole government property, and injured or committed a “depredation” against property of the United States. Some of the crimes are misdemeanors; others are felonies. I suspect that the individuals who stole items from the speaker of the House, for example, will be charged with theft of government property, a felony. It is also a felony to enter or remain in a restricted building or grounds without lawful authority “with intent to impede or disrupt the orderly conduct of Government business or official functions,” which covers much of the conduct at issue here. There are other potential offenses as well.
It is also a crime to know about the criminal activity of others and help make it succeed. So it is possible that Trump or some of his allies, like Rudy Giuliani, could be charged with aiding and abetting some of the criminal activity if it can be proved beyond a reasonable doubt that they knew the criminal activity would happen and they did something concrete to help the insurrectionists. Mere encouraging words would not be enough. Anyone who agreed with the insurrectionists to storm the Capitol also could be charged with conspiring to commit some of the crimes I outlined earlier. But that would require an agreement to join the effort in some way, not merely cheering from the sidelines.
It’s unclear what role Trump, Giuliani and other Trump allies had in the insurrection itself. There is no question that Trump’s disinformation campaign and dangerous rhetoric fueled the insurrection, but an investigation is needed to determine if they played an active role that could carry with it criminal liability.
‘Conspiracy and sedition … are definitely on the table here’Neal Katyal is a former U.S. Acting Solicitor General who is working pro bono on the prosecution of police officers implicated in the killing of George Floyd.
Every person who trespassed and defiled our sacred Capitol should be prosecuted. Conspiracy and sedition under 18 USC 2384 are definitely on the table here. If the media reports that only about 15 people were arrested on the Capitol grounds yesterday are accurate, that is unconscionable. Think about how many arrests there have been with the Black Lives Matter protests.
Whether President Trump’s conduct rises to the level of incitement or not, Wednesday’s actions reveal him to be a man utterly without character or respect for our Constitution and laws. Once Trump loses his temporary immunity from prosecution on January 20, a full set of investigations at the federal, state and local levels must be undertaken. If crimes were committed, he should be prosecuted. Future generations should know that the United States does not tolerate this level of wrongdoing, even from former presidents.
‘They did not commit sedition’
Alan Dershowitz is a professor emeritus at Harvard Law School.
The only people who should be prosecuted are those who personally committed serious crimes, such as the willful destruction of property. No one should be prosecuted for what they said as distinguished from what they did.
Wednesday’s outrageous invasion of the Capitol impacted one day in the life of America. Stretching the First Amendment to cover speeches would do more enduring damage to our Constitution. Those who destroyed government property should be prosecuted for that crime. They did not commit sedition, treason or anything akin to far more serious crimes. The same standards should be applied to right-wing rioters as would be, and have been, applied to left-wing rioters.
These cases should be prosecuted in the District of Columbia in the normal course of events. The sentences should be proportional to the damages caused.
‘Some prosecutor … must be researching the felony murder rule’
Theodore B. Olson was U.S. solicitor general from 2001 to 2004 and is now a partner at Gibson Dunn.
I’m not a prosecutor, and it has been a long time since I went to law school. But I would think that some prosecutor in the District of Columbia or in the Department of Justice must be researching the felony murder rule and the definitions of murder and manslaughter in the Federal Criminal Code, including the liability, under the criminal law, and perhaps under wrongful death rules, of aiders and abettors, and those who plan, inspire, incite or promote criminal acts which result in death.
‘There is no First Amendment right to disrupt physically the work of the government’
Elizabeth Holtzman represented New York’s 16th Congressional District from 1973 to 1981. She was also elected district attorney of Brooklyn and comptroller of New York City. She practices law in New York.
As a former member of the House and as former Brooklyn district attorney, I am horrified at the mass lawlessness at the Capitol Wednesday and believe it must be swiftly and properly responded to by the police and prosecutorial authorities. Those who invaded the Capitol, vandalized property and injured law enforcement officials or others must be identified and prosecuted. Those who incited the riotous actions must also be investigated to determine whether their actions violate the law, and if so, they must be prosecuted. That includes President Donald Trump, his son Donald Jr., Rudy Giuliani and others who spoke at the president’s rally before the march to the Capitol. Those who might have organized and planned the attack on the Capitol must be investigated as well to see whether their actions were criminal.
There may be a range of crimes involved, including riot, inciting to riot, destruction of property, crimes related to interference with governmental activities, trespass, assaulting an officer and sedition, to name a few. There is no First Amendment right to disrupt physically the work of the government. The invaders were shock troops acting at Trump’s behest to prevent the Electoral College votes from being counted so that Trump could be elected.
What is particularly concerning is that the attack on the U.S. Capitol appears to have been replicated or imitated elsewhere around the country. Was the attack on the Capitol part of a larger effort to create a national uprising or insurrection? If so, then there must be a broader examination of the threats posed by the white supremacists and other hate groups, and we must rethink and intensify our efforts to combat them.
Clearly because of the geographical reach of the potential crimes committed, the FBI should be involved in the investigation. The highest levels of the Justice Department should be involved because of the question of the president’s apparent criminal liability.
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