What kinds of criminal charges can be brought against the Capitol Hill Rioters?

The Federal Docket

January 27, 2021

The east side of the US Capitol in the early morning. Senate Chamber in the foreground.

Since an angry crowd of former President Trump’s supporters marched on the Capitol on January 6, the Department of Justice has been vigorously pursuing criminal charges against individuals who broke into the Capitol in an apparent attempt to overturn the presidential election results. The siege on the Capitol left 5 people dead, including a Capitol Hill police officer, and a significant amount of the action was captured on film by journalists and people in the crowd. Many of the Capitol Hill rioters were armed as well.

Most if not all of the prosecutions will likely be federal given that the events took place on federal property. The federal government has identified more than 400 suspects who they expect will soon be charged with sedition and have arrested over 135 people since January 6. The Government is offering financial incentives for those who can provide information leading to an arrest, reflecting that these cases are high priority for the Government.

Many have speculated over what kinds of charges the Government will bring against these people. Title 18, Chapter 115 of the U.S. Code lists the kinds of charges that can be brought for “treason, sedition, and subversive activities.”

Despite what you may hear from the cable news pundits, the Capitol Hill rioters are unlikely to be charged with treason against the Government. To convict a person of treason under 18 U.S.C. 2381, the Government must prove that an individual who “owes allegiance” to the U.S., has “levied war” against the U.S., has “adhered” to its enemies, or has given the country’s enemies “aid and comfort within the U.S.” The punishment for treason is death or a mandatory minimum of at least five years in prison.

Treason charges are rare, however, and the statute only applies to a limited range of conduct. In fact, Article III, Section 3 of our Constitution limits the definition of treason and imposes certain requirements on the Government before they can convict anyone of treason, such as requiring “two Witnesses to the same overt Act, or on Confession in open Court.” Because of these restrictions, the Government likely won’t charge anyone for treason.

The Government is also unlikely to charge anyone under 18 U.S.C. 2385, which prohibits “advocating the overthrow of Government.” This law applies to whoever 1) knowingly advocates or teaches a need to overthrow or destroy the government by violence or force; 2) intentionally prints, publishes or distributes written material advocating the overthrow or destruction of government by force or violence; or 3) organizes or attempts to organize a group of people to advocate for the overthrow or destruction of government by force or violence. The potential sentence for advocating overthrow of Government is up to 20 years in prison, but the First Amendment protections on speech will likely make this law unappealing for the government to rely on, especially when they can use other laws to charge these individuals.

The Capitol Hill rioters are more likely to be charged with insurrection or sedition. Under 18 U.S.C. 2383, rebellion or insurrection is defined as inciting, assisting, or engaging in “any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.” The penalty is up to ten years in prison and disqualification from holding any public office. A prosecution on this charge will hinge on the specific facts of the case, including the defendant’s intentions and actions, and on how the government and the courts define “rebellion” and “insurrection.”

Here, the Government will likely argue that the Capitol Hill rioters were rebelling against the “authority” and “laws” of the United States by trying to interfere with or prevent Congress from fulfilling its constitutional duty in certifying the election. In fact, the rioters succeeded in delaying the counting of the electoral college votes, as lawmakers had to go into hiding during the riot and certified the election later that night after the Capitol was cleared.

The rioters charged with insurrection or rebellion will likely defend themselves by stating that they were upholding and protecting the U.S. and its laws by protesting what they believe to be an illegitimate election. And of course, they can also honestly argue that they were invited to march on the Capitol by the then-sitting U.S. President.

“Seditious conspiracy” under 18 U.S.C. 2384, on the other hand, requires that two or more people in the U.S. “conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by 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.” The possible sentences include up to 20 years in prison.

To prove this charge, the Government will need to be able to show that two or more people had an agreement to engage in the seditious conduct described above. The Government will argue that the individuals who entered the Capitol did so with the specific intent to “prevent, hinder, or delay the execution of any law of the United States,” if not outright overthrow the Government by rioting in demand of a new election.

Just like the Government is relying on social media to identify these suspects, it will also rely on social media posts and forums to show juries that the Capitol Hill rioters were acting in concert with each other, that they had all agreed to march on the Capitol with the intent to delay the certification of the election results or overturn them. Indeed, some of the leaders of the rioters were explicitly recruiting others on social media to execute an explicit plan of storming the Capitol, and some included threats or promises to engage in violence towards elected officials.

Social media will also be a source of powerful evidence against some of people who were filmed in the Capitol, such as those holding zipties or rifles, or yelling that they would kill elected officials or take over the government. Of course, individuals who were photographed taking property from the Capitol, such as the man who took the podium for the Speaker of the House, can expect to see those pictures used against them at trial as Exhibit A.

Others at the Capitol may be charged with more minor crimes, such as trespassing on a restricted building or grounds. A person can be charged under 18 U.S.C. 1752 if 1) they knowingly entered a restricted building or grounds without lawful authority, 2) knowingly and intentionally acting to impede or disrupt the orderly conduct of Government business or official functions, 3) knowingly obstructing the entry or exit into any restricted buildings or grounds with the intent to impede or disrupt the orderly conduct of Government or official functions, 4) knowingly engaging in any acts of violence against persons or property on restricted buildings or grounds, or 5) knowingly operating an unmanned aircraft system (drone) with the intent to cause such a craft to enter a restricted building or grounds.

“Restricted buildings or grounds” means any area of the White House, Vice President’s residence, or buildings or grounds “so restricted in conjunction with an event designated as a special event of national significance.” That would include the Capitol, at least while it is certifying election results.

Generally, a conviction under Section 1752 is a misdemeanor, punishable by up to one year in prison. However, a conviction can carry up to ten years in prison and a hefty fine if the person convicted used or carried “a deadly or dangerous weapon or firearm” or “the offense results in significant bodily injury.” This is where individuals caught on camera beating police officers or carrying firearms in the Capitol will have significant exposure to serious prison time.

Some of the people charged in these cases will have legitimate defenses. For those charged with crimes arising only from their unauthorized entry into the Capitol, for example, there is video evidence of some police officers letting the protestors in or otherwise not acting to arrest or deter them once they entered the building. It will be difficult to bring sedition charges against individuals who were seen simply standing around or walking in the capitol rotunda, even though others around them were engaged in violent or seditious acts. On the other hand, individuals with firearms, people engaging in violence against officers, and those who led the charge on the Capitol will need to prepare strong defenses to more serious charges.

For better or for worse, these cases will be sensationalized by the media, prosecutors, and perhaps even some of the defense lawyers. While many people are understandably shocked by the events of January 6, 2020, it is important to get the law right, including what constitutes “just punishment.” As we continue seeing these cases work their way through the court system, lawyers and members of the public alike should appreciate the differences in these cases and the individuals who stormed the Capitol, and treat them fairly based on those distinctions.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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