How does one describe the legal dimensions of what happened last week as a violent rightwing mob incited by the American President assaulted the US Capitol in Washington, D.C.?
What words or phrases can one even begin to apply to such a wide range of criminal acts committed that day? An acquaintance of mine quipped last week: “What can the rioters be charged with? Do you have a copy of the US Code?”
There are many resources from American scholars, legal analysts and independent sources such as the Congressional Research Service to help readers start to unpack the many concepts involved. And we will be hearing these legal words and phrases in the months ahead as the criminal investigations expand, more arrests are made and dozens, or hundreds, or thousands of accused are brought to trial on any number of charges.
Words and phrases such as treason, sedition, insurrection, rioting, incite/incitement, attempt/attempted as in “coup attempt”, and conspiracy.
Here are a few of those excellent resources that try to untangle what US law says about the attack on the Capitol:
- The Capitol Riot: Documents You Should Read (National Security Archive, January 13, 2021): “The Pentagon’s timeline of its response to the January 6, 2021 mob attack on the U.S. Capitol features multiple discrepancies with the public record, while the first federal indictment of mob participants details the specific legal charges that likely will be brought against others, according to the documents in the National Security Archive’s first ‘January 6 Sourcebook’ posted today.” [The Archive based at George Washington University combines the roles of investigative journalism centre, research institute on international affairs, and library and archive of declassified U.S. documents]
- A Civilian’s Guide to Insurrection Legalese (The Marshall Project, January 8, 2021): “Was it a coup, or an insurrection? Did anyone commit treason, or sedition? What exactly does it mean to incite a crime, or to riot? These aren’t just word games. Knowing how these terms are specifically defined under federal law will have consequences for the most violent of the rioters who have been or could be arrested by federal authorities—and also for Donald Trump and others who instigated the crowd’s actions. To be sure, the most likely federal charges that could be levied against Trump supporters fall under the broad—and less serious—ban on committing ‘unlawful activities’ on Capitol grounds, from ‘violent entry’ to property destruction to disorderly conduct. Here’s a Marshall Project roundup of some of the terms in U.S. criminal law being batted around this week.” [The Marshall Project, an American nonprofit that conducts research into criminal justice, is named after Thurgood Marshall, the lawyer for the NAACP Legal Defense Fund who won the landmark US Supreme Court case Brown vs. Board of Education that galvanized the modern U.S. civil rights movement. He later became the first African-American justice of the U.S. Supreme Court.]
- Questions to Guide an Investigation of the Capitol Attack (Just Security, New York University School of Law, January 11, 2021): “The invasion of the United States Capitol was an entirely predictable event, which makes the wholesale security collapse all the more unconscionable. Threats on social media grew more frequent and specific after President Donald Trump called on his supporters to gather in Washington, D.C., and push Congress to overturn the election results. Somehow though, several security leaders said they could not have imagined the violence that happened on January 6. Congress should establish a commission to investigate the failure and make recommendations to prevent it from happening again, including by taking on its underlying causes. These are the questions that should guide the effort.”
- Could Trump face charges for speech before Capitol riot? Experts differ on Brandenburg impact (ABA Journal, January 14, 2021): “Could a 1969 case involving a Ku Klux Klan leader protect President Donald Trump from incitement charges in connection with the Jan. 6 riot on the U.S. Capitol? Constitutional law experts offer differing opinions on the impact of the case, Brandenburg v. Ohio. The decision held that advocating the use of force is protected under the First Amendment unless it is ‘directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’ The defendant in the case was Klan leader Clarence Brandenburg, who was charged under an Ohio law for advocating violence during a rally.”
- Federal Criminal Law: January 6, 2021, Unrest at the Capitol (Congressional Research Service Legal Sidebar, January 12, 2021): “This Sidebar focuses … on three specific categories of federal criminal statutes that may have been violated by some of the participants in the unrest at the Capitol: (1) crimes involving federal property; (2) crimes against persons; and (3) crimes against government authority. (Additionally, though not discussed further in this Sidebar, inchoate crimes like attempt or conspiracy to commit the substantive crimes
described below or other crimes, as well as accomplice liability, may be relevant).”
- Domestic Terrorism and the Attack on the U.S. Capitol (Congressional Research Service Insight, January 13, 2021): “In light of this incident and the violent threat to the operation of the U.S. Congress, policymakers may be interested in whether this incident may be treated as domestic terrorism and if the participants are domestic terrorists, among other issues. This Insight discusses whether or not participants and their actions may be categorized as domestic terrorists and domestic terrorism, respectively, and issues around designating domestic fringe groups, such as the Boogaloo Bois and Proud Boys who were allegedly involved in the attack, as terrorist organizations. It concludes with possible next steps for Congress.”
- Siege at the Capital – The National Security Law Perspective (American Bar Association podcast, January 12, 2021): panelists are Professor William Banks, Chair of the ABA Standing Committee on Law and National Security Advisory Committee; Professor Mary DeRosa, Georgetown University Law School; Professor Harvey Rishikof, Temple University