In separate posts this morning, Dave Schuler observes,
1. January 6, 2021 was significant and the actions of those who breached the Capitol were wrong.
2. All of those involved should be prosecuted to the full extent of the law.
3. I think it’s important to distinguish between a reasonable revulsion at the events and partisan posturing or battlespace preparation.
4. There’s a lot of the latter going on.
Just as with 9/11 practically nothing has been learned since the breaching of the Capitol. It’s a terrible commentary on us.
and muses,
So far none of the 700 some-odd individuals who have been charged with crimes in connection with the January 6, 2021 breaching of the Capitol has been charged with insurrection. Does the same standard apply to the election and the breaching of the Capitol? If not, why not.
If so, there was no insurrection and claiming there was is mischievous.
My sensibilities here are similar to Dave’s in that we both believe Biden clearly won the election, that the events of a year ago went well beyond lawful protest, and that there is a lot of hysteria and grandstanding going on.
While I quickly embraced the “insurrection” label, it didn’t take me long to come to the conclusion that what happened that day was not a single event but a series of overlapping ones: insurrectionists legitimately hoping to overturn the election/seat the person they believed the rightful winner via violence; violent extremists using the mob to engage in mayhem with little interest in the election results; Trump supporters who came to demonstrate and got caught up in the frenzy of the riot; and yahoos, most of them Trump supporters, who went into the Capitol after the barricades had been abandoned who went in for shits and giggles and to take selfies for social media. The exact extent of the relationship between them still remains unclear to me.
I have therefore long been using “riot” as a blanket term to describe what happened and have gone to great pains to distinguish between the conduct of individual cases, usually based on incomplete media accounts.
As to “why hasn’t anyone been charged with insurrection (or treason, or sedition, or whathaveyou)?” the answer is that our lay use of these terms differs from the legal standards and burdens of proof associated with them.
So, for example, I have maintained since the earliest days that Trump is morally and politically guilty of inciting the riots and should have been impeached (which he was), found guilty (which he predictably wasn’t), and shunned (which is true for roughly the half of Americans who opposed his reelection). At the same time, I have simultaneously maintained that he almost certainly hasn’t met the extremely high bar the Supreme Court has set for charging him with criminal incitement.
So it is with insurrection. And we’ve known that since the beginning.
The folks at The Marshall Project put out “A Civilian’s Guide to Insurrection Legalese” on January 8, 2021–less than two days after the events in question.
Treason
Treason is unique: It is the only crime defined by the U.S. Constitution rather than by the laws that Congress has passed in the centuries since. The Founders intentionally described it narrowly, so that any repressive future president could not use it to punish political opponents. There are only two ways to commit this offense, they said: “levying war” against America or “giving aid and comfort” to one of the nation’s enemies—typically a foreign adversary.
Over the years, the Supreme Court and Congress have further narrowed the scope of what constitutes treason: To be guilty, you must have the specific intent to betray the U.S. on behalf of an enemy and then commit an overt act of such betrayal. Given the prevalence of American flags on the Mall this week and the rioters’ chants of “U.S.A.! U.S.A.!”—however malicious their deeds—it would be nearly impossible for prosecutors to prove their goal was treasonous.
[…]
Sedition
On Wednesday, President-elect Joe Biden said that some of what unfolded at the Capitol “borders on sedition.”
This term has a long, complex history; wartime legislation passed in the late 1700s and early 1800s used the concept to criminalize any criticism of the government’s actions, leading to thousands of prosecutions, sometimes just for writing a pamphlet. These laws were unpopular, especially when they were used to target people who posed no physical threat, and they were eventually repealed or struck down.
Today, the U.S. criminal code defines sedition as part of a broad category that includes treason. The actual crime is called “seditious conspiracy.” This involves using—or planning to use—physical force against the U.S. government, as well as efforts to “seize, take, or possess” government property, or “delay the execution of any law of the United States” by force. The punishment can be up to 20 years in prison.
[…]
Matthew Schneider, U.S. Attorney for the Eastern District of Michigan, has already told the Detroit Free Press that more “seditious conspiracy” charges may result from the Capitol takeover, and legal experts told the newspaper that interrupting the counting of electoral votes clearly violated the ban on delaying the execution of U.S. law. Other federal prosecutors around the country have made similar statements.
Insurrection
“What happened here today was an insurrection,” said Sen. Mitt Romney, Republican of Utah, on Wednesday night.
Insurrection also falls under the same suite of federal laws as sedition, and the two can be difficult to distinguish. But it is charged by federal prosecutors far more rarely—almost never in American history. It means, essentially, to incite, assist in or engage in a full-on rebellion against the government: a step beyond just conspiring against it, and requiring that significant violence be involved.
Cliven Bundy, a Nevada rancher, mounted an armed standoff with the federal government in 2014—his son, Ammon Bundy, did the same in Oregon in 2016—on the basis of an explicitly anti-U.S. government philosophy. Still, prosecutors did not charge them with insurrection, which legal experts say is nearly impossible to prove in court.
Rioting
A riot is a protest that turns violent, which clearly happened this week. The criminal charge of rioting, though, is often pursued under state law.
Federal prosecution can result if a person traveled from another state to be part of a riot, or used interstate communications (internet, phone, etc.) to plan it. A riot that takes place on U.S. property, which includes the Mall and the Capitol building, is also subject to federal jurisdiction.
The Trump administration has repeatedly charged Black Lives Matter protesters and others expressing dissent in the streets with “rioting.” Whether Trump supporters who rioted on federal property, after crossing state lines in cars and buses, will be prosecuted in the same way will test whether the law is being enforced equitably, regardless of race or ideology.
Incite/incitement
President Trump has faced accusations of “inciting” violence at least since his first presidential campaign in 2016, when he obliquely suggested that people with guns use them to attack his opponent, Hillary Clinton. This week, he was accused again, based on his urging an angry crowd to march toward Congress and “fight.” His lawyer, Rudy Giuliani, also encouraged “trial by combat” at the rally.
At the same time, Trump’s statements to crowds have often been interpreted as legal, because the First Amendment’s guarantee of free speech sets a very high bar for what words can be criminalized.
In 1969, Ku Klux Klan leader Clarence Brandenburg made a speech at an Ohio rally. “If our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken,” he said. Brandenburg was fined and sentenced to prison under Ohio state laws. But the U.S. Supreme Court overturned his conviction, saying that such speech couldn’t be punished unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
The “Brandenburg test”—also known as the “incitement test”—has been used repeatedly to protect speakers across the political spectrum who stop short of offering what one ACLU lawyer has described as an “immediate roadmap for violence.”
There are DOJ officials who have been quoted in the press as saying that seditious conspiracy charges are justifiable in some instances. And they may well be.
The legal process, alas, is slow. We have processed hundreds of cases but, for the most part, they’re the simple ones: the simple assaults, simple trespass, and the like. They’re pleading out and getting, with rare exception, mild sentences. A handful have gotten significant prison time.
In this morning’s open forum, a commenter posted a link to a Raw Story report headlined “‘To save America’: Jan. 6 rioters networked in advance, planned to storm the Capitol and fantasized about hanging lawmakers for ‘treason’.” I find it somewhat overwrought and sensationalized, being a little too cute with sleight-of-hand. But it details real evidence of the most serious parts of the Capitol Riot I pointed to earlier (“insurrectionists legitimately hoping to overturn the election/seat at the person they believed the rightful winner via violence; violent extremists using the mob to engage in mayhem with little interest in the election results”).
I suspect that we’ll see very serious criminal charges forthcoming against the worst of the worst: the Proud Boys, Oath Keepers, and other “militia” types intent on violence. Maybe we’ll see sedition charges. I doubt we’ll see insurrection charges; they’re just too hard to prove.
And, alas, I continue to seriously doubt enough evidence will emerge for the Attorney General to charge former President Trump himself.
UPDATE: The Lawfare gang remind me that the Attorney General spoke on this matter yesterday. He spells out much of what I’ve said above emphatically:
Only a small number of perpetrators were arrested in the tumult of January 6th itself. Every day since, we have worked to identify, investigate, and apprehend defendants from across the country. And we have done so at record speed and scale — in the midst of a pandemic during which some grand juries and courtrooms were not able to operate.
Led by the U.S. Attorney’s Office for the District of Columbia and the FBI’s Washington Field Office, DOJ personnel across the department — in nearly all 56 field offices, in nearly all 94 United States Attorneys’ Offices, and in many Main Justice components — have worked countless hours to investigate the attack. Approximately 70 prosecutors from the District of Columbia and another 70 from other U.S. Attorney’s Offices and DOJ divisions have participated in this investigation.
So far, we have issued over 5,000 subpoenas and search warrants, seized approximately 2,000 devices, pored through over 20,000 hours of video footage, and searched through an estimated 15 terabytes of data.
We have received over 300,000 tips from ordinary citizens, who have been our indispensable partners in this effort. The FBI’s website continues to post photos of persons in connection with the events of January 6th, and we continue to seek the public’s assistance in identifying those individuals.
As of today, we have arrested and charged more than 725 defendants, in nearly all 50 states and the District of Columbia, for their roles in the January 6th attack.
In charging the perpetrators, we have followed well-worn prosecutorial practices.
Those who assaulted officers or damaged the Capitol face greater charges.
Those who conspired with others to obstruct the vote count also face greater charges.
Those who did not undertake such conduct have been charged with lesser offenses — particularly if they accepted their responsibility early and cooperated with the investigation.
In the first months of the investigation, approximately 145 defendants pled guilty to misdemeanors, mostly defendants who did not cause injury or damage. Such pleas reflect the facts of those cases and the defendants’ acceptance of responsibility. And they help conserve both judicial and prosecutorial resources, so that attention can properly focus on the more serious perpetrators.
In complex cases, initial charges are often less severe than later charged offenses. This is purposeful, as investigators methodically collect and sift through more evidence.
By now, though, we have charged over 325 defendants with felonies, many for assaulting officers and many for corruptly obstructing or attempting to obstruct an official proceeding. Twenty defendants charged with felonies have already pled guilty.
Approximately 40 defendants have been charged with conspiracy to obstruct a congressional proceeding and/or to obstruct law enforcement. In the months ahead, 17 defendants are already scheduled to go to trial for their role in felony conspiracies.
A necessary consequence of the prosecutorial approach of charging less serious offenses first is that courts impose shorter sentences before they impose longer ones.
In recent weeks, however, as judges have sentenced the first defendants convicted of assaults and related violent conduct against officers, we have seen significant sentences that reflect the seriousness of those offenses — both in terms of the injuries they caused and the serious risk they posed to our democratic institutions.
The actions we have taken thus far will not be our last.
The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy. We will follow the facts wherever they lead.
Because January 6th was an unprecedented attack on the seat of our democracy, we understand that there is broad public interest in our investigation. We understand that there are questions about how long the investigation will take, and about what exactly we are doing.
Our answer is, and will continue to be, the same answer we would give with respect to any ongoing investigation: as long as it takes and whatever it takes for justice to be done — consistent with the facts and the law.
[…]
We build investigations by laying a foundation. We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases.
Investigating the more overt crimes generates linkages to less overt ones. Overt actors and the evidence they provide can lead us to others who may also have been involved. And that evidence can serve as the foundation for further investigative leads and techniques.
In circumstances like those of January 6th, a full accounting does not suddenly materialize. To ensure that all those criminally responsible are held accountable, we must collect the evidence.
We follow the physical evidence. We follow the digital evidence. We follow the money.
But most important, we follow the facts — not an agenda or an assumption. The facts tell us where to go next.
My general instinct in these matters is to fear overzealousness of prosecution, in that there is enormous pressure to bring charges after the expenditure of so much time and money. And that it’s generally a bad thing when the essentially unlimited resources of the state are unleashed against citizens. Thus far, at least, the process has struck me as methodical and, with the exception of the standard sentencing disparities based on the luck of the draw of judicial assignment, fair.
Regardless, I have every confidence Garland and his Department are focused on the task at hand and determined to punish to worst offenders.
The aforementioned Lawfare gang, Quinta Jurecic, Andrew Kent, and Benjamin Wittes, have this to say:
It’s hard to say exactly what to make of this statement. It could imply trouble for political leadership that engaged and encouraged the rioters, or the operatives who organized the event itself. Or it could, in the alternative, mean that the Justice Department is continuing aggressive investigations of groups like the Proud Boys and Oath Keepers, some of whose members have already faced conspiracy charges in relation to the riot. In the case of both of these groups, a number of key leaders who were not physically involved in the violence themselves remain unindicted, despite evidence that they were in contact with those who were. Or perhaps the department might also be considering unveiling charges of seditious conspiracy or “rebellion or insurrection,” statutes weighted with political significance that the Justice Department has not yet made use of when it comes to Jan. 6.
[…]
Articulating the values that guide him is valuable. We argued previously that Garland needed to speak publicly about his vision for the department precisely because so many Americans are unfamiliar with the norms governing its work. Here, he is doing just that.
But it is also frustrating to someone looking for any kind of guidance about where this is all heading. It would be a gross overreading of what Garland said-and didn’t say-to think that the public learned anything yesterday about whether the Justice Department is criminally investigating anyone in political leadership for a supposed role in encouraging the insurrection, much less whether such people might face charges. This point includes, but is not limited to, former President Donald Trump. On all such matters, Garland remained silent.
While unsatisfying, it’s likely correct. While Wittes and I have defended former FBI Director James Comey’s unusual speech explaining why he didn’t prosecute former Secretary of State Hillary Clinton in the matter of her emails, we have seen the backlash it caused. It’s likely better to have an impatient public annoyed that, a year later, no major charges have been leveled than to further politicize this mess. With the person who defeated Trump in charge of the Executive Branch and a man whose rightful place on the Supreme Court was taken away by Republican hijinks in charge of the prosecution, we don’t need to add even more fuel to that fire.
