Surprise[!] Charges Are Coming

As it turns out, you can’t physically assault the peaceful transition of power without breaking a mess of federal laws along the way.

by Deedra Abboud in Political, Solutions
January 13, 2021 0 comments

The January 6th pro-Trump attack on the Capitol creates a target-rich environment for prosecutors.

As it turns out, you can’t physically assault the peaceful transition of power without breaking a mess of federal laws along the way.

Most of the Jan 6th pro-Trump rioters have been initially indicted with federal charges of “Knowingly entering or remaining in any restricted building or grounds without lawful authority; violent entry and disorderly conduct on Capitol grounds.” [18 U.S. Code § 1752]

The class A misdemeanor include knowingly entering a federal building without permission to do so and engaging in disorderly conduct without permission to do so. If convicted, perpetrators face 0-1 years in prison, up to a $100,000 fine, a supervised release for one year and a $25 special assessment.

The Class B misdemeanors include violent entry or disorderly conduct at the Capitol and come with six months in prison, up to a $5,000 fine and a $25 special assessment if convicted.

But more indictments are surely to come.

For example, 18 U.S. Code § 1752 includes another violation of “with intent to impede or disrupt the orderly conduct of Government business or official functions”… such as 3 U.S. Code § 15 – Counting electoral votes in Congress.

The statute’s definition of “restricted buildings or grounds” includes places “where the President or other person protected by the Secret Service is or will be temporarily visiting” or places that are “restricted in conjunction with an event designated as a special event of national significance.”

Vice President-elect Kamala Harris was also present, so the building likely satisfied the requirement that it contain a “person protected by the Secret Service.”

That section also includes offenses in which one “obstructs or impedes ingress or egress from any restricted building or grounds” and “knowingly engages in any act of physical violence against any person or property in any restricted buildings or grounds.”

The punishment for a lone violation of this federal code is a fine or imprisonment for not more than one year, or both.

Multiple violations of this one statute could elevate to a felony with huge fines and decade-long prison sentences.

And under this same statute, if:

(A) the person, during and in relation to the offense, uses or carries a deadly or dangerous weapon or firearm; or

(B) the offense results in significant bodily injury as defined by section 2118(e)(3),

Then the penalty is a fine or imprisonment for not more than 10 years, or both… on top of the trespassing misdemeanor.

In addition, federal law explicitly prohibits bringing weapons into the Capitol or engaging in “violent entry and disorderly conduct.” [40 U.S.C. section 5104]

For destruction of property, federal law prohibits “depredation against any property of the United States.” [18 U.S. Code § 1361]

Robbing or attempting to rob “another of any kind or description of personal property belonging to the United States” is a felony [18 U.S. Code § 2112] and comes with a prison sentence of not more than fifteen years.

There are also restrictions for using “loud, threatening, or abusive language” on the grounds with the aim of disrupting the work of Congress. [40 U.S. Code § 5104]

A specific statute governs unlawful activities on the grounds of the U.S. Capitol, making it illegal to “step or climb on, remove, or in any way injure any statue, seat, wall, fountain, or other erection or architectural feature, or any tree, shrub, plant, or turf.” [40 U.S. Code § 5104]

The law also prohibits anyone who is not a member of Congress from appearing on the House or Senate floor without express permission. [40 U.S. Code § 5104]

And a “person may not—(1) parade, stand, or move in processions or assemblages in the Grounds; or (2) display in the Grounds a flag, banner, or device designed or adapted to bring into public notice a party, organization, or movement,” nor “display a sign, placard” inside the Capitol. [40 U.S. Code § 5104]

There are reports of rioters perusing Pelosi’s emails—which, if true, could likely constitute a violation of the Computer Fraud and Abuse Act’s prohibition against “knowingly access[ing] a computer without authorization.” [18 U.S. Code § 1030(e)(1)]

Federal law also criminalizes riots, which are defined along similar lines. [18 U.S. Code § 2102]

Federal law strictly prohibits possessing a firearm in a federal facility “with intent that a firearm or other dangerous weapon be used in the commission of a crime.” [18 U.S. Code § 930]

Federal law also prohibits both transportation of firearms and obstruction of law enforcement as part of civil disorder, an activity defined broadly as “any public disturbance involving acts of violence by assemblages of three or more persons, which causes an immediate danger of or results in damage or injury to the property or person of any other individual.” [18 U.S. Code § 232]

Also relevant is Section 2384, which outlaws “seditious conspiracy,” defined as when “two or more persons … conspire to overthrow, put down, or to destroy by force the Government of the United States … 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.” [18 U.S. Code § 2384]

Seditious conspiracy includes attempting to hinder, delay, or prevent the execution of any laws… such as 3 U.S. Code § 15 – Counting electoral votes in Congress.

The U.S. Court of Appeals for the Seventh Circuit wrote in the 80s that “Congress enacted Section 2384 to help the government cope with and fend off urban terrorism.” The seditious conspiracy statute “provides a vehicle for the government to make arrests before a conspiracy ripens into a violent situation.” [United States v. Rodriguez, 803 F.2d 318]

In 1999, the U.S. Court of Appeals for the Second Circuit judges drew a distinction between Section 2384 and “treason,” noting that the seditious conspiracy statute differs from reason “in its essential elements and punishment.” On the question of “essential elements,” the judges emphasized that seditious conspiracy “includes no requirement that the defendant owe allegiance to the United States, an element necessary to conviction of treason.” [U.S. v. Rahman, 189 F.3d 88]

In its opinion rejecting the claim that Section 2384 was a “restraint on speech,” the Second Circuit held that, “while the state may not criminalize the expression of views—even including the view that violent overthrow of the government is desirable—it may nonetheless outlaw encouragement, inducement, or conspiracy to take violent action.”

The most recent attempt to bring seditious conspiracy charges came in 2010, when the judge in a case dismissed the seditious conspiracy charges, relying on Baldwin v. Franks, a 1887 Supreme Court decision, the judge noted that, for a seditious conspiracy charge, the defendants “must have agreed to oppose some positive assertion of authority by the United States Government; mere violations of the law do not suffice.”

There’s a ton of evidence available to prosecutors, including forensic proof such as fingerprints.

Much of the criminal activity took place on live television, providing ample footage that can be combined with facial-recognition technology to identify suspects.

Cameras inside the Capitol captured the action as did the social-media feeds of rioters themselves.

The Federal Bureau of Investigations has posted an online form seeking “tips and digital media depicting rioting and violence in the U.S. Capitol Building and surrounding area” and loyal Americans have been heeding the call individually and collectively.

Legal experts say it’s likely that even before the mayhem unfolded, undercover investigators were prowling social media to monitor whoever was organizing it.

Suspects may have postings that provide evidence of their intent.

The question of what charges can be brought is different from the question of what charges should be brought, and against whom.

No doubt this will be at the top of the list for incoming Attorney General Merrick Garland to deal with.

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