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Some of the pro-Trump rioters, whose grinning faces are plastered across social media as they broke into the Capitol and destroyed lawmakers’ property, will almost certainly be looking out from behind bars — and soon.
Trump extremists who launched an unprecedented attack on the US Capitol on Wednesday could together find themselves in an unprecedented dimension of legal peril, with authorities potentially employing some of the nation’s more archaic but serious criminal statutes.
Federal and DC law enforcement officials have a wide selection of photos, videos and social media posts to dig through as they seek to identify the members of the violent pro-Trump mob that left lawmakers, congressional staffers, and others in the Capitol shaken.
Those who participated will “face a range of criminal charges given the extent of the illegal behavior that took place,” said Joshua Geltzer, executive director of Georgetown Law’s Institute for Constitutional Advocacy and Protection and a former counsel to the Department of Justice’s assistant attorney general for national security.
While only a few dozen had been arrested by Thursday evening, the FBI has put out a call for help from the public in identifying the violent pro-Trump supporters — many of whom were maskless and posted their exploits all over social media. Federal authorities and other law enforcement will likely make more arrests within days, if not hours.
“These fools made it easy for law enforcement to find them because they were posing for pictures. At least some had the wherewithal to wear masks,” said Jeffrey Cramer, a former federal prosecutor. “If you’re any of these people who decided to show their face in pictures that were broadcast throughout the world, they need to be packing their toothbrush right now.”
And many members of Congress themselves say justice should be thorough and swift.
“I strongly encourage law enforcement and the Justice Department to hold the individuals who took part in the assault on the Capitol accountable for their actions,” Rep. Anthony Brown, a Maryland Democrat and Army veteran of 30 years, told Insider. “These actions were criminal and should be treated as such in order to ensure yesterday’s loss of life, injuries and serious breach of national security never happens again.”
An Insider analysis of the United States Code, coupled with interviews with several leading experts on federal law, identified more than a dozen different federal crimes that could apply to Trump supporters who attacked the Capitol.
Assaulting, resisting, or impeding government officials
Videos both inside and outside the Capitol showed numerous pro-Trump extremists physically fighting with and otherwise interfering with federal law enforcement and other government officials.
Anyone who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes” with certain government employees while they’re “engaged in or on account of the performance of official duties” faces significant fines and prison time, depending on the severity of his or her offense.
Simple assault is punishable by a fine and up to one year in prison, although that number could grow to eight years if the perpetrator made “physical contact” with the victim or committed the crime with the intent to commit another felony.
The law provides for an even greater penalty — a fine and imprisonment of up to 20 years — if the perpetrator used a “deadly or dangerous weapon” or “inflicts bodily injury.”
Government employees covered under this law include “any officer or employee of the United States or of any agency in any branch of the United States government,” including members of uniformed services. Any person assisting a covered government employee while they’re performing their official duties is also protected under the law.
No lawmakers or other high-ranking government officials have reported being hurt.
Perhaps the most slam-dunk federal charge at authorities’ disposal is trespassing, given that hundreds of people illegally entered restricted portions of the US Capitol.
It’s a crime when someone “knowingly enters or remains in any restricted building or grounds without lawful authority to do so.”
Other forms of federal trespass are committed when someone impedes or disrupts the “orderly conduct of government business or official functions” or “impedes ingress or egress to or from any restricted building or grounds.”
The Capitol was closed to the general public Wednesday for the counting of electoral votes. Authorities had cordoned off sections of the Capitol grounds when the Trump supporters fought police and made their way into Congress. They took selfies at the presiding officer’s desk and ransacking the lawmakers’ desks and the Senate parliamentarian’s offices.
Late Thursday, Capitol Police Officer Brian Sicknick died of injuries he sustained during the raid on the Capitol.
Federal and local officials are investigating the circumstances of his death.
If investigators believe Sicknick died after being physically attacked, the attacker or attackers could face federal murder charges that carry a penalty of up to life in prison.
Attempting to kill or kidnap a member of Congress
Rioters stormed both chambers of Congress and infiltrated the offices of congressional members, including that of House Speaker Nancy Pelosi, a Democrat they consider the arch-nemesis of Trump.
Using photos, video, audio, interrogations, and even social media posts, officials are likely to investigate whether any of the attackers intended to kill, kidnap, or assault members of Congress — crimes that could be punished with life in prison.
It’s also illegal for two or more people to conspire to kill or kidnap a member of Congress — also punishable by life in prison.
Prosecuting someone for kidnapping an elected official isn’t entirely implausible: Just last year, a group of men plotted to kidnap Michigan Gov. Gretchen Whitmer over her pandemic-related restrictions. In December, a federal grand jury indicted six men for conspiracy to kidnap.
Here’s another crime Americans would generally associate with the 18th and 19th centuries, not 2021. Nevertheless, the crime of “seditious conspiracy” remains part of federal law.
It’s defined, in part, as two or more people conspiring to “overthrow, put down, or to destroy by force the government of the United States.”
While that may seem a bit of a stretch even based on what the world saw Wednesday, another portion of the sedition law seems more applicable: conspiracy to “prevent, hinder, or delay the execution of any law of the United States.”
“It seems pretty clear that they were trying to prevent, hinder, or delay Congress from executing the law,” Geltzer said. “This is not the reach that sedition normally is.”
People convicted of seditious conspiracy could face a fine and up to 20 years in prison.
An arcane and rarely enforced cousin of sedition is part of the US Code called “advocating overthrow of government.” This law states it’s a crime when someone “knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States.”
Destruction of government property
Shattered windows. Broken doors. Trashed congressional offices. That was some of the damage the violent mob left behind after they broke past security officials — some entering through broken windows — and raced through the Capitol.
Expect numerous people to face charges on this count.
Anyone who “willfully injures or commits any depredation against any property of the United States” commits a federal crime. Attempting to damage government property is also illegal.
If the value of the destroyed property exceeds $1,000, a perpetrator could face a fine and up to 10 years in prison if found guilty, according to federal law. If it’s less than $1,000, the vandal can expect a fine and up to a year in prison.
Rebellion or insurrection
This may seem like a charge straight out of your high school history books, reserved for bad actors from the early years of American history.
But rebellion and insurrection remain squarely set in federal law books.
Anyone who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States” could be fined and imprisoned for up to 10 years. They’d also be disqualified from holding elected office. Relatedly, someone who “gives aid or comfort” to a rebel or insurrectionist could face the same penalty.
President-elect Joe Biden called the attack on the Capitol an “insurrection.” Whether federal prosecutors agree that the attack fits the specific, legal definition of insurrection is another matter.
Many if not most of the pro-Trump extremists who broke into the Capitol, weren’t DC residents.
Why does this matter? Because crossing state lines with the intent to “incite … organize, promote, encourage, participate in, or carry on” any riot — including one in Washington, DC — could be punishable by up to five years in prison. Anyone aiding or abetting another who broke this law could get in deep trouble, too.
This hinges on the defendant having traveled in “interstate commerce,” which in plain language includes using a car, bus, train, plane, or even their own feet to get themselves to the nation’s capital from somewhere else.
Making threats against government officials’ family members
People attacking the Capitol could be seen and heard shouting myriad threats during the melee.
Simply threatening to assault, kidnap, or murder certain US officials, including the vice president, member of Congress, and federal law enforcement officers, is punishable by up to 1 year in prison for a relatively minor offense and up to 20 years for the most serious.
Some family members of congressional representatives were present in the US Capitol on Wednesday, including the daughter and son-in-law of Rep. Jamie Raskin, a Democrat from Maryland whose son died earlier this month.
But this law would apply regardless of whether a threatened family member was present on the Capitol grounds.
Investigators will have hours and hours’ worth of video to review to determine whether anyone violated this particular law.
The presence of at least one explosive device at the Republican National Committee headquarters near the Capitol gives rise to potential terrorism charges.
Federal law states that anyone who “delivers, places, discharges, or detonates” an explosive or otherwise lethal device at a government facility or in a “place of public use” could face life in prison — and in the most extreme cases, the death penalty. It’s unclear yet if authorities have identified whoever was responsible for placing the explosive device at the RNC.
This law is straightforward: Anyone who steals a “thing of value” from the United States government faces a fine or imprisonment for up to 10 years.
Photos from the attack Wednesday showed people taking Capitol property, including a smiling man in a “Trump 45” beanie walking off with a lawmaker’s lectern.
“Once you talk about stealing certain things from Nancy Pelosi’s office, was there anything in that office that may rise to a higher level than just, you know, stealing a podium?” Cramer said. “We don’t know what was in that office. Everyone had to leave in a hurry. So who knows what was lying around and who knows what these idiots stole.”
Cramer also noted that one person involved in the mob was pictured stealing a piece of U.S. mail from the Capitol, which would also constitute a federal crime. Stealing mail could earn someone a fine and, or up to five years in prison.
The Department of Justice on Thursday also announced that there were undisclosed “national security equities” in the theft of records from the Capitol.
Transporting weapons during ‘civil disorder’
DC Police Chief Robert Contee said authorities recovered several weapons in and around the scene of Wednesday’s Capitol Hill attack, including guns, Molotov cocktails, and two pipe bombs.
It’s a federal crime to transport any firearm or explosive or incendiary device for use “unlawfully in furtherance of a civil disorder,” which the federal government defines as “any public disturbance involving acts of violence by assemblages of three or more persons.”
This crime is punishable by up to 5 years in prison. The rioters may have also breached DC’s strict gun-ownership laws.
Most rioters haven’t stuck around Washington, DC, high-tailing back to their home states on planes, trains, and automobiles.
If and when the law catches up to them, they should know that anyone who “moves or travels in interstate or foreign commerce” intending to avoid prosecution could face a fine and up to five years in prison.
If you’re being investigated for attacking the Capitol, you may want to watch your mouth.
That’s because it’s a federal crime, in certain circumstances, to make a “materially false, fictitious, or fraudulent statement or representation” about a matter within the jurisdiction of Congress.
Expanded Coverage Module: capitol-siege-module