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

A violent mob of Donald Trump supporters stormed the U.S. Capitol on Jan. 6 amid the president’s final push for a second term in office despite his election loss by more than 7 million votes. Intruders, some of them wearing Trump shirts and tactical gear, broke windows and trashed offices in a chaotic scene that forced Congress to halt its proceeding to formally certify President-elect Joe Biden’s win. Vice President Mike Pence vowed that “those involved will be prosecuted to the fullest extent of the law.” Theslow response by police and the relatively few arrests made left observers wondering if the mob would face justice.

1. What crimes did the attackers potentially commit?

Legal experts say a wide variety of crimes — everything from vandalism to insurrection — occurred and prosecutors could charge individuals even if they walked away from the incident without being detained. Alongside misdemeanors and felonies related to assault of law enforcement officers, firearms offenses, breaking and entering and trespassing, members of the mob could be charged with the “willful injury of federal property.” President Trump issued anexecutive order during the Black Lives Matter protests in June saying 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. Other serious crimes include sedition and insurrection, which would require proving intent to disrupt or even overthrow the government. A sedition conviction carries a maximum prison term of 20 years.

2. 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, including Representative Alexandria Ocasio-Cortez, have called for his impeachment, again.

3. What evidence could be used in prosecutions?

There’s a ton of evidence available to prosecutors. That includes 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. Plus, suspects may have social-media postings that provide evidence of their intent. Legal experts say it’s likely that even before the mayhem unfolded, undercover investigators were prowling social media to monitor whoever was organizing it.

4. Will Trump’s Justice Department charge the rioters?

There isn’t much time before Trump leaves office. Acting Attorney General Jeff Rosen said Wednesday that the agency intends “to enforce the laws of our land.” The department can start gathering evidence now, but decisions about how vigorous the prosecution should be are more likely to be made by the next attorney general since it takes time to build cases from such a chaotic event. “The Department of Justice should be looking at it right now,” Maryland Attorney General Brian Frosh said. “These are potentially really serious crimes. They were trying to stop the election of Joe Biden and they shut down Congress to try to do it. These are not petty crimes.” The long arm of the law may also follow troublemakers to wherever they came from. U.S. Attorney Peter McCoy in South Carolina said “anyone who traveled from the District of South Carolina with intent to aid this travesty or commit acts of destruction will be prosecuted” by his office.

5. Can Trump pardon the mob?

He can pardon them for any federal crimes. Trump has issued several pardons tosupporters 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.

6. How many people have been arrested?

According to theWashington Post, 13 people were arrested in Washington on charges including firearm offenses, assault and crossing police lines. Around 30 more people were arrested for violating the district’s 6 p.m. curfew. Despite the fact that there were thousands of people at the Capitol, there were no large-scale arrests. In fact, atwo-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

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

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