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Federal prosecutors are vowing an aggressive investigation of all those who took part in or instigated the breach and takeover of the Capitol on Wednesday, raising the prospect that inflammatory statements President Donald Trump and Rudy Giuliani made to supporters shortly before the assault will be closely scrutinized for possible criminal charges.
The acting U.S. attorney for the District of Columbia, Michael Sherwin, said on Thursday that the Justice Department’s initial focus was on prosecuting those who breached security at the Capitol, ransacked offices and assaulted police officers. But he vowed that investigators would take a careful look at what led up to the shocking event and whether others not physically on site as it happened should face justice.
“We’re trying to deal with the closest alligators to the boat right now,” Sherwin told reporters. “And those are the people that obviously breached the Capitol, created violence and mayhem there and then exited, but, yes, we are looking at all actors here, OK? Not only the people that went into the building.”
“Was there a command and control? Were there others that maybe assisted or facilitated, or obviously played some ancillary role in this?” the prosecutor said. “All options are on the table. We will look at every actor and all criminal charges. Anyone that had a role, and the evidence fits the elements of a crime, they’re going to be charged.”
Sherwin declined to discuss specific individuals, including Trump and Giuliani, the president’s personal lawyer, although the Justice Department official did say he’d not had or ordered any contact with the White House counsel’s office about the case.
During a rally shortly before the violence at the Capitol, Trump called on his supporters to “fight like hell” before dispatching them to march to the houses of Congress as they were considering objections to the electoral votes that declared President-elect Joe Biden the winner of the Nov. 3 election. At the same rally, Giuliani urged “trial by combat” on Trump’s claims that he was the genuine winner.
Sherwin said the early investigation into the assault on the Capitol had been handicapped by the fact that the U.S. Capitol Police arrested only about 14 of the hundreds of people involved and instead allowed most of those present to exit without being detained or questioned.
“I’m not going to play Monday morning quarterback and see when or why they didn’t do it,” he said, “but the scenario has made our job difficult because, look, we now have to go through a process, cell-site orders, video footage to try to identify people, charge them and try to execute their arrest. So, that has made things challenging.”
Sherwin said the FBI and others were now trying to identify and track down those suspects, including by using cellphone data, video surveillance and social media posts. On Wednesday night, the FBI issued a call to the public to submit any evidence or tips they have about who participated in the Capitol takeover.
Legal experts say charging figures like Trump or Giuliani could be difficult or even unwise because impassioned speeches at political rallies could often be seen as riling up individuals who may later break the law. The First Amendment gives broad protection to such speech, unless it can be shown that the speaker knew criminal activity was imminent or underway.
“The law of incitement deliberately makes it very hard to prove,” said Eugene Volokh, a law professor at the University of California at Los Angeles “A lot of fiery rhetoric that moves people to political action can prompt a minority — usually a tiny minority, but still a minority — to criminal action.”
Volokh said that it was easy to see how a strong speech against abusive police conduct might lead some in the crowd to attack officers or a police station, for example, but that the law typically doesn’t permit the speaker to be charged for that.
“If you set aside this being the president, this kind of thing is very common,” he said. “I think this is not, in fact, likely to be considered incitement under existing law, and it would be a mistake to try to stretch existing law to cover it because it’s something that could be used against ordinary citizens engaged in political movements in the future.”
Volokh said another challenge prosecutors would face in charging Trump over his remarks was that, whether sincerely or not, the president did at one point urge restraint.
“I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard,” Trump told the crowd on Wednesday.
Trump’s failure was not a criminal violation but a breach of his duties as president, Volokh said. “The real problem is he’s conspicuously failed at his job,” the professor said.
Federal law enforcement is already being challenged over what many saw as a kid-gloves response to the Capitol takeover, especially when compared with the aggressive, militarized response to protests in Washington last spring.
Many critics have noted that while the largely white crowd of Trump supporters seemed to enter the Capitol building with ease and encountered police officers reluctant to make arrests or use force, the Black Lives Matter protesters were often met with police batons and tear gas.
Of course, the police did put up some resistance to Wednesday’s assault. One protester, Ashli Babbitt, 35, was shot by a plainclothes Capitol Police officer near the House chamber and later died. Her death is being investigated by the Metropolitan Police Department. A Capitol Police officer is also reportedly gravely ill in the wake of the onslaught Wednesday.
In the spring protests in Washington and across the country, scuffles with officers, as well as damage to police vehicles, led to hundreds of federal felony prosecutions under an anti-riot statute and other laws. While some cases were indisputably serious, others seemed less so.
In September, a woman in Portland, Ore., was charged with a federal felony of civil disorder for throwing a helmet at a city police officer. Late that month, a man in Las Vegas was hit with a federal felony charge for repeatedly kicking — but not breaking — the windows of a federal courthouse there.
In addition, those disturbances provoked an outraged reaction from Trump, who promised that the full weight of the U.S. government would come down against anyone breaking the law. He even took to social media to falsely claim that he’d issued an executive order that imposed a 10-year mandatory minimum prison sentence on anyone vandalizing a federal monument.
Sherwin acknowledged his office’s aggressive prosecution of alleged crimes related to protest activity or unrest last spring and fall, bringing 174 such cases. He said 55 criminal cases had been filed or were expected to be filed Wednesday and Thursday of this week, signaling an effort of similar or greater magnitude.
D.C. Superior Court Judge Juliet McKenna held several hours of arraignments on Thursday for dozens of suspects who were arrested Wednesday on charges that included firearm violations, unlawful entry, resisting arrest and curfew violations.
At least two defendants were presented in federal court, including one man accused of bringing a 9mm handgun onto the Capitol grounds and another who was charged with punching a Capitol Police officer in the chest and helmet during the melee on Wednesday.
Most of the defendants were from out of town and were ordered to stay away from D.C. until the court dates in June. Prosecutors did seek detention of some of those charged with firearm violations, but most defendants lacked any prior criminal records and the judge generally released them.
In September, Deputy Attorney General Jeffrey Rosen issued a memo to federal prosecutors across the country saying that use of the federal sedition statute could be appropriate in some cases involving violent, anti-government protests. No such cases have been filed, but Justice Department officials told POLITICO that the directive from Rosen — who is now the acting attorney general — remained in place and could be applicable to what happened on Wednesday at the Capitol.
“All options are on the table,” Sherwin said. “All of those charges are on the table.”
Sedition cases have been rare in recent decades. In 1999, President Bill Clinton drew criticism for commuting the sentences of 16 Puerto Rican nationalists, some of whom had been convicted on seditious conspiracy charges related to bombings and attacks in the 1970s and 1980s.
The sedition statute was also employed in an indictment in 2010 against right-wing militia members in Michigan known as the Hutaree. In 2012, a judge ordered the members’ acquittal on that charge, citing insufficient evidence.
“I’m not aware of any other sedition cases that have been brought” since then, said Mike Rataj, a defense attorney in that trial.
Rataj noted that advocating the violent overthrow of the U.S. government could lead to a sedition charge, but that defendants didn’t necessarily have to go that far.
“Overthrowing the government is one way to get charged with it, but impeding the execution of the law of the United States is another way,” he said.
Rataj said the focus on the Capitol made the events of Wednesday a clear candidate for sedition charges.
“If you read it, right there in black and white, it’s exactly what happened yesterday,” he said. “What I saw yesterday falls neatly under the sedition statute. Period.”
However, Sherwin also acknowledged that the ultimate charging decisions would be made after weeks or months of investigation. That means they will fall to Biden administration appointees who will begin to flow into the Justice Department in less than two weeks. They’re likely to favor aggressive prosecution of the Capitol takeover, but will also have to assess the hundreds of federal cases still pending from the demonstrations and unrest across the country last year.
Kyle Cheney contributed to this report.