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Pro-Donald Trump rioters could face heavy penalties for subverting the presidential election process.
U.S. Attorney Michael Sherwin told reporters Thursday that prosecutors have filed 55 cases, 15 of which involved federal crimes, related to the riots – and more to come. The charges range from illegal entry to possession of firearms, including Molotov cocktails.
An adult man repeatedly punched an officer in the chest inside the Capitol, charges filed Thursday. Another was accused of carrying a pistol.
Several others were arraigned Thursday in Washington DC Superior Court on charges of illegally entering the Capitol and violating the curfew, relatively minor charges. They were released and ordered to stay outside of Washington DC unless they were also involved in criminal matters.
For the most serious cases, charges of seditious conspiracy, riots and insurgency “are on the table,” Sherwin said.
Rioters charged with crimes such as illegally and violently entering the House floor could face up to five years in prison, said David Sklansky, a law professor at Stanford University. Meanwhile, assaulting a federal agent with a weapon could mean 20 years of incarceration, especially if the officer was injured, he added.
Following nationwide protests against the murder of George Floyd last year, President Trump signed a executive order which required up to 10 years’ imprisonment for vandalism or destruction of “historic monuments, statues and memorials”. But since the Capitol seat appeared to be intended to interfere with the electoral college’s vote count, the prison sentence could reach 20 years, Sklansky said.
“Breaking into the nation’s Capitol to disrupt the business of Congress on a particularly critical day in American democracy is a pretty serious violation,” Sklansky said. “It’s hard to see monument vandalism as worse than breaking into the Capitol, disrupting members of Congress, and preventing the government from formalizing the results of a presidential election.”
Dan Farber, professor of law at the University of California at Berkeley, pointed out that charges of seditious conspiracy apply when two or more people use “force to prevent the execution of any law in the United States.”
“Obviously they were trying to do it,” Farber said, referring to efforts to stop the vote count.
Among the challenges to charging rioters with seditious conspiracy, however, is the difficulty of determining whether their decision to violate the Capitol was planned or impulsive, he said. In such cases, prosecutors would need to know “more about how it was organized,” Farber said.
“It didn’t look like a military assault, but it didn’t look spontaneous either,” he said.
Ultimately, it will be up to prosecutors to determine, based on the evidence, how rigorous the approach to take. In Farber’s view, the riot was serious as it was “specifically designed not just to throw paint on things or on a building, but something designed to prevent crucial government action and that been done with force ”.
But, John Dermody, an attorney for the O’Melveny law firm, said federal prosecutors were unlikely to charge the rioters with seditious conspiracy because prosecutors in Washington DC generally want to avoid politicizing their cases. Although the seditious conspiracy charges “carry potentially much higher sentences,” he said, the sentence for assaulting a federal agent is already severe. Prosecutors can impose more conventional charges on rioters that might deter others from committing similar crimes, without having to face the policy that would result in accusing them of seditious conspiracy.
“Make no mistake, the riots were extraordinary and the attack on Capitol Hill was shocking and not at all as usual in Washington,” said Dermody, who previously worked at the National Security Council and the Department of Defense. internal security. That said, prosecutors in DC are used to dealing with “protest-related crimes” and generally try to avoid bringing politics into their work, he said.
“I think there is a reason why with the Sedition Act there isn’t a long history of use,” Dermody said.
As for President Trump, accused of inciting riots, Sklansky said that would be unlikely. Despite his speech just before, in which he urged his supporters to “fight”, Sklansky said it would be difficult to prove that his intention was to illegally bring people into the Capitol by force or violence.
“The way Donald Trump threw matches at the gasoline dumped in this election’s conspiracy theories is an impenetrable offense, but it would be difficult to charge him with criminal acts nonetheless,” Sklansky said.
And even if Trump were charged with a crime, would he be able to forgive himself?
“Who knows?” Farber said. “The only thing you have to say about Trump is you just don’t know.
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