I took this oath myself, as an 18 year old commencing Navy service. Our civil society depends on the grand social compact described in our Constitution. Imperfect as it may be, no one can be above the law in a democracy. And yet, on January 6th, a group of homegrown domestic terrorists attacked the US Capitol, with Congress in session–presided over by the Vice President of the United States–carrying out perhaps the most solemn duty of the branch of government specifically chosen by the framers to be delineated first, in Article One of the Constitution.
Incredibly, these insurrectionists acted at the urging of President Donald J. Trump, who in the days leading up to the riot implored them to act on his false claims of election fraud in connection with his duly certified defeat at the polls. So spurred to insurrection, the mob gathered at the symbol of our representative democracy, and stormed the Capitol building. Some were armed, barricades were dismantled, windows were broken, Congressional offices and desks were rifled through and vandalized, Congressional property was stolen, members of Congress were whisked away and placed in hiding, security and police officers were overwhelmed and overrun, and one Capitol Police officer, Brian Sicknick, was brutally murdered by the rioters, who bludgeoned him with a fire extinguisher. The purpose of this invasion was to stop Congress and the Vice President from fulfilling their Constitutional duty to certify the electoral votes and confirm that Joseph R. Biden Jr. and Kamala Harris won the 2020 election for President and Vice President, respectively.
What was done, can’t be undone. There were many laws broken that day. If we fail to enforce them fairly, we will further jeopardize the democracy that they are designed to uphold. Our nation of laws might otherwise find itself adrift in a sea of lawlessness.
Plenty of laws were broken
Photos and videos on social media document the shocking and senseless things that happened during the storming of the Capitol building. While some have called it a "protest" and those involved, "protestors," let’s be very clear that peaceful, law-abiding protests are legal. Storming the Capitol building armed and with the intent to stop Congress from exercising its Constitutional duty is a crime. Actually, it’s the commission of many crimes. Here are few examples of the crimes most likely committed that day:
Insurrection - Insurrection is the incitement, assistance, or participation in acts of violence against the state or its officers. Those found guilty could face a fine, up to 10 years in prison, or both. (18 U.S.C. Section 2383)
Advocating Overthrow of the Government - Advocating for the overthrow or destruction of the U.S. government by force or violence is a violation of federal law. A person might invoke the First Amendment in their own defense, but the Supreme Court, in the 1969 Brandenburg v. Ohio case, made an exception for speech that is directed at and likely to incite and produce imminent lawless action. Another exception to free speech protection is a “true threat,” or “forms of intimidation that are most likely to inspire fear of bodily harm.” Those found guilty of this crime could face a fine, up to 20 years in prison, or both. (18 U.S.C. Section 2385)
Sedition - Seditious conspiracy is when two or more people actively plan to forcefully:
- Overthrow or destroy the U.S. government, or to go to war against it.
- Oppose the U.S. government’s authority and forcefully prevent or delay the execution of any U.S. law.
- Take, seize, or possess U.S. property against the authority of the U.S. government.
Violators face a fine, up to 20 years in prison, or both. (18 U.S.C. Section 2384)
Conspiracy to Impede or Injure an Officer - This law is broken when two or more people actively plan to prevent any person from holding any office, trust, or place of confidence under the United States by force, threats, or intimidation. This law also applies when an officer is forced to leave the place where their duties are required to be performed or when the officer’s property is damaged in a way that interrupts, hinders, or impedes the officer’s ability to discharge their duties. The penalty is a fine, up to 6 years in prison, or both. (18 U.S.C. Section 372)
Murder - Murder is the unlawful killing of another human being. If the murder is willful, deliberate, malicious, and premeditated, it is considered first degree murder. It is also considered first degree murder if the killing occurs during the commission of a felony, such as arson, kidnapping, treason, espionage, sabotage, burglary, robbery, or another murder. Any other murder is second degree murder. First degree murder carries a penalty of life imprisonment or death. Second degree murder carries a penalty of imprisonment for any number of years or for life. (18 U.S.C. Section 1111)
Damage to Government Property - It is a crime to damage or attempt to damage federal property. If the damage or attempted damage is over $1,000, the penalty is a fine, up to 10 years in prison, or both. If the damage or attempted damage is less than $1,000, the penalty is a fine, up to 1 year in prison, or both. (18 U.S.C. Section 1361)
Robbery - It is a crime to rob or attempt to rob someone of personal property that belongs to the United States. The penalty is imprisonment for up to 15 years. (18 U.S.C. Section 2112)
Unauthorized Entry or Presence - It is a violation of federal law to knowingly enter or remain in a restricted building or grounds without the proper authority or permission to do so. It is also a crime to:
- Engage in disorderly or disruptive conduct in or around restricted buildings or grounds and impede or disrupt the orderly conduct of Government business or official functions.
- Block the entering or leaving of a restricted building or grounds in order to stop or disrupt the orderly conduct of Government business or official functions.
- Engage in physical violence against a person or property within any restricted building or grounds.
If a person is in violation of this law and, during the crime, used or carried a deadly or dangerous weapon or firearm or the activity resulted in significant bodily injury, the penalty is a fine, up to 10 years in prison, or both. Without the presence of a weapon or bodily injury, the penalty is a fine, up to 1 year in prison, or both. (18 U.S.C. Section 1752)
Inciting a Riot - It is a federal crime to travel in or use any facility of interstate or foreign commerce to incite, organize, promote, encourage, participate in, commit an act of violence in furtherance of a riot, or to aid and abet any person to commit those acts. Technically, a riot is an act or acts of violence by one or more people who are assembled in a group of at least three people. These acts must constitute a clear and present danger of damage or injury to a person or property, or result in damage to a person or property. The penalty for violating this law is a fine, imprisonment for up to 5 years, or both. (18 U.S.C. Section 2101)
Possession of Firearms and Dangerous Weapons in Federal Facilities - Unauthorized and unlawful possession of a firearm or dangerous weapon in a federal facility is a federal crime. Having a firearm or dangerous weapon in a federal facility with the intent to commit a crime could result in a fine, up to 5 years in prison, or both. Without the intent to commit crime, the unlawful possession alone can result in a fine, up to 1 year in prison, or both. (18 U.S.C. Section 930)
More could be added to this list–including crimes like assault and battery or the intentional infliction of emotional distress–but you get the picture.
Where do we go from here?
The many laws that were broken in the Capitol Insurrection were designed to protect our government institutions and to keep intact the social compact that makes civil society possible. As we have seen for centuries and now in the stark contrast of the treatment of Black Lives Matter protesters vs. the mostly white and male Capitol Insurrectionists, the promise of “equal justice under law” for all US citizens remains uneven in its application. We cannot afford to ignore these crimes. As Martin Luther King Jr. wrote in his Letter from a Birmingham Jail, "justice too long delayed is justice denied."
In the pursuit of accountability through prosecution, what may set this incident apart in history is the availability of video and social media–new and powerful digital tools of justice–to find, arrest, and convict those who broke the law. The FBI has put forth a call for photo and video evidence to help identify the individuals involved through crowdsourcing.
Our democracy can emerge stronger from this latest crisis. To do so, our nation of laws must hold the perpetrators of the Capitol Insurrection fully accountable, including a dishonorable discharge, at a minimum, in the form of impeachment, removal or censure for the Commander in Chief of the riotous mob and his congressional co-conspirators.
Originally posted on LinkedIn Pulse: How Will the Capitol Riot Perpetrators Be Held Accountable Under Law?
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.