The supporters of President Donald Trump who breached the U.S. Capitol building on Wednesday may face charges of sedition, legal experts say.
The U.S. center of power became a scene of outright chaos Wednesday as supporters made their way past barricades, broke in through windows and sent representatives into hiding during a session of debate over election certification. The assault on the Capitol came shortly after a rally for the president, who continued to levy baseless claims that the election was rigged and told the crowd they would “never concede.“
President-elect Joe Biden said in a televised address Wednesday that the lawlessness “is not dissent, it’s disorder, it’s chaos. It borders on sedition. And it must end, now.”
The actions of the crowd were “inexcusable” and crimes, U.S. Attorney for the Eastern District of Michigan Matthew Schneider told the Detroit Free Press, part of the USA TODAY Network.
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“There’s a difference, a big difference, between peaceful protests and expressing your freedoms,” said Schneider, who was appointed to his post by Trump.
“This is not it. The violent protesters are committing crimes, and they have to stop right now and this is not what our Constitution protects.”
Depending on what investigators find and individual circumstances, charges could range from everything from low-level curfew charges, to trespassing, to the misdemeanor of destruction of government property less than $1,000, depending on the cost of the windows and anything else, he said.
There could be a felony charge of destruction of government property over $1,000, depending on what was damaged, which is punishable by up to 10 years in prison, he said.
On the high end, charges of civil disorder, interfering with law enforcement, or inciting a riot could all be possible, up to seditious conspiracy — a federal charge punishable by up to 20 years in prison, he said.
That latter charge seemed most appealing to two professors of Western Michigan University’s Cooley Law School.
“If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, 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, they shall each be fined under this title or imprisoned not more than twenty years, or both.”
The phrase “delay the execution of the law” is key, and what was seen from some of the Trump supporters Wednesday, said Devin Schindler, a law professor who once clerked for the 9th Circuit Court of Appeals.
“For at least some of these protesters, particularly the ones that broke into the Capitol, I think there’s an extraordinarily strong case that they used force to delay, to hinder, the execution of our laws governing the election and how electoral votes are counted,” he said. “It seems fairly clear to me, based on what we’re seeing, that folks are in fact, almost textbook violating this seditious conspiracy statute by using force to interfere with lawful government activity.”
Though people on Twitter were levying the term “treason,” he and Schneider both agreed the charge didn’t quite fit with what is known, because treason requires the involvement of enemies to the U.S.
Retired Brig.Gen. Michael McDaniel, associate dean for the Western Michigan University-Cooley Law School, too, pointed to sedition as a key possible charge in the case, after possible lesser charges.
He also said the defense might be difficult; First Amendment protections aren’t in play once a break-in occurs.
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The idea of “sedition” has changed, he said, pointing to the version President John Adams used against his political opponents. It’s been narrowed by the courts in the present day.
He also raised concern for a different federal charge of rebellion or insurrection, which could carry a sentence of 10 years in prison, and Trump’s words at the rally earlier in the day.
“Remember it’s got to be ‘against the authority of the United States,’” he said, using the language of the law. “So a really interesting question to pose to my law students later on this week is whether or not the president’s speech … was inciting them to violence against the authority of the government of the United States.”
Depending on that answer, given the president’s role, another impeachment would perhaps be more appropriate than a charge, he said.
There likely won’t be any court action quickly on the events of the day, Michael Traugott, a professor emeritus of communication studies and political science and research professor emeritus at the Center for Political Studies at the University of Michigan, said. There will be jurisdiction issues, even among which agencies will be doing investigations.
Schneider, too, said investigations could take weeks, but said some people could be charged earlier.
But it’s not the first time the idea for “seditious conspiracy” has been raised in the last year. The U.S. government looked to the seditious conspiracy charge amid the violence of summer protests, Schneider said.
Looking back historically, he also recalled another time shots rang out at the Capitol, in 1954.
Five House lawmakers were shot and wounded then by members of the Puerto Rican Nationalist Party, which argued for the island’s independence, who were shooting from the gallery above the chamber.
A different time, a gunman on the first floor of the building also killed two Capitol police officers in 1998, and a former Capitol officer fired shots at a senator in 1947 as he entered the subway tunnel linking the Capitol to Senate offices.
However, Traugott said the nearest precedent to what happened Wednesday can be found back in the Civil War. But even then, the Capitol itself wasn’t stormed.
“The action of the mob in Washington, incited by President Trump, is an unprecedented affront to the peaceful transfer of power on which our democracy is based,” he said. “It is a seditious act unlike anything since the Civil War.
“There have been individual acts, like Oklahoma City, but nothing like this. It’s pretty directly attributable to one person (Trump).”
The actions of the mob created a “tear in our civil and political fabric (that) will be difficult to repair,” he said.
People need to know the punishments, so they go home and things don’t get even worse, said Schneider.
“We should all be able to disagree peacefully,” he said. “That’s one of the most disturbing things to me is that we’re, on both sides of the aisle, everyone is taking these disagreements to the extreme interest shouldn’t be that way,” he said.
Considering the historical context, Schindler thought back to the burning of the Capitol during the War of 1812, but still thought the 2020 storming stood out.
“This kind of violence within the Capitol is extraordinarily rare,” he said. There’s some examples back in the pre-Civil War era or the Civil War era or congressman fights,” he said. “There was some … shootings in the Capitol, but to see this level of violence directed towards the lawful exercise of government is unheard of.”
Follow Darcie Moran on Twitter: @darciegmoran.