As of Sunday, January 10, thirteen people were charged with major federal crimes in connection with the invasion of the United States Capitol Building on January 6, and an additional forty people were arrested for unlawful entry, curfew violations, and firearms-related crimes. The arrested include Cleveland Meredith, who is charged with threatening to kill to House Speaker Nancy Pelosi, Richard Barnett, who was photographed sitting in Pelosi’s office with his feet on her desk, and Lonnie Coffman, who is charged with possession of an unregistered firearm. Eleven explosive devices were also discovered in Coffman’s vehicle. Federal. Law enforcement officials anticipate that there will be many more arrests.
Leading Democrats are calling for investigations of Donald Trump and his facilitators for a broad range of crimes prior to the assault on the U.S. Capitol. Nancy Pelosi and the Democratic Party’s leadership in the House of Representatives are moving ahead with new impeachment charges, but it is very unlikely the Senate would hold hearings before Trump leaves office. Pelosi and Republican Senators Lisa Murkowski (Alaska) and Pat Toomey (Pennsylvania) called on President Trump to resign. Vice-President Michael Pence could invoke the 25th Amendment to the Constitution, charging that Trump was unfit to perform his duties, and temporarily remove him from power.
Newly elected Congressional Representative Jamal Bowman, whose district bridges the Bronx and Westchester, is demanding that Trump “do jail time.” We probably will not know President Biden’s views until after his inauguration on January 20. In 2009, facing a similar but not as extreme situation, President Obama, who Biden served as Vice-President, declined to investigate charges against the Bush Administration arguing it was important to “look forward as opposed to looking backwards.”
Donald Trump is considered exempt from criminal charges while in office, but after January 20 his immunity from prosecution disappears. Everything will be complicated by the possibility that before leaving office Trump will issue a blanket Presidential pardon blocking federal prosecution of himself, his extended family, team members, and even all participants in the January 6 rally and rioting. Legally, it is not clear if a self-pardon will hold up in court, but it could drag through the legal system forever. Trump and his enablers could still face civil and criminal charges by local and state law enforcement including tax evasion and fraud.
If Donald Trump decides to go the pardon route, he will probably try to protect the rioters. If he pardoned himself, without pardoning the people he calls “patriotic Americans” and who attend the “wild” affair he promoted in Washington, he would be betraying his base. It is also possible that President Biden would pardon Trump and his cronies as part of a national healing effort. One reason the House of Representatives is pursing impeachment charges at this late date is if President Trump is convicted in the Senate he could be barred from seeking future political office.
There are precedents for blanket pardons for entire groups that broke federal laws. In 1863, as part of his post-Civil War Reconstruction plan, Abraham Lincoln offered amnesty to Confederates who took up arms against the United States. After Lincoln was assassinated, President Andrew Johnson issued over 12,000 Executive pardons. In 1977, President Jimmy Carter granted unconditional pardons to men who had evaded the draft during the Vietnam War.
People who participated in the Capitol building break-in face a range of criminal charges including riot, unlawful entry, criminal trespass, destruction of government property, possession of weapons, and assault. The most serious are felony murder and seditious conspiracy.
Felony Murder: Felony murder is a crime in Washington DC. Because five people died during the break-in, including a Capitol police officer, Brian Sicknick, who was murdered by rioters, anyone who participated in the riot could be charged with felony murder because these people died while all of the rioters were engaged in criminal activity. According to the federal law that applies in the District of Columbia, felony murder occurs when there is a death during “any arson, escape, murder, kidnapping, treason, espionage, sabotage, aggravated sexual abuse or sexual abuse, child abuse, burglary, or robbery; or perpetrated as part of a pattern or practice of assault or torture against a child or children.” For a person to be found guilty, prosecutors must demonstrate a connection between the death and the criminal actions. In this case, mob violence, including participants who were carry weapons, in a secure government building with armed guards, is probably sufficient to justify a felony murder charge.
Seditious Conspiracy: Seditious conspiracy bars the use of force “to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” It carries a maximum prison sentence of 20 years. It is also a crime if you knew about the criminal activity of others and acted in a way that assisted them in their criminal behavior. Donald Trump, Rudy Giuliani, Donald Trump Jr., and other speakers at the “Save America” rally that preceded the riot could be charged with aiding and abetting criminal activity if they knew it would happen and helped the rioters. It is almost impossible to believe that Trump and the organizers of the rally did not know what would happen. In April, armed protesters rushed the Michigan State Capitol building after President Trump tweeted they should “Liberate Michigan.” At least two of the protesters were later charged in a plot to kidnap the Governor and bomb the state Capitol.
Incitement to Riot: There is a fine line between freedom of speech and incitement to riot. As Supreme Court Justice Oliver Wendell Holmes famously stated in a Court opinion, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.” Since the Court’s 1969 Brandenburg v. Ohio decision, the government cannot punish an abstract advocacy of force. Restricted speech must incite imminent lawless action.
At the “Save America” rally, Rudy Giuliani called for “trial by combat” and Donald Trump Jr. warned Congress that we are “coming for you.” President Trump definitely inflamed the crowd with charges that “our election victory” was “stolen by emboldened radical left Democrats” and “our country will be destroyed.” Trump did say the march to the Capitol should be “peacefully and patriotically,” but he also said “We will not take it anymore” and encouraged his supporters to “ “take back our country.
According to Dean Jens David Ohlin of the Cornell Law School, an expert on criminal conspiracy law, “If you incite someone to commit a crime, you’re just as responsible as they are for committing the crime.”
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