On January 6, 2021, supporters of then-President Donald Trump in attendance at the Save America Rally descended upon the U.S. Capitol building with the intent of disrupting the certification of the 2020 presidential election. Hundreds of individuals stormed Congress causing significant damage to the building and forcing government officials to go into lockdown. Over eight hundred people have been arrested and charged with crimes and over three hundred people have entered guilty pleas.
The U.S. House of Representatives created a commission on June 30, 2021 to conduct its own investigation into the January 6th attack. Over one year later, they have interviewed hundreds of people, issued several subpoenas, reviewed unseen video footage and read thousands of documents to ascertain everyone that is responsible. Beginning June 9, 2022, this January 6th Committee began to publicly reveal its findings during public hearings where witnesses testified to previously unknown details, including those closely connected to the Trump Administration. It may be possible that this new evidence may lead to criminal prosecutions of former high-ranking government officials, including the ex-president himself.
Participants in the January 6th Attacks have been charged with many crimes ranging from low-level misdemeanors to serious felonies. The laws violated include, but are not limited to, the following:
CIVIL DISORDER – 18 U.S.C. §231
- “[T]eaches or demonstrates to any other person the use, application, or making of any firearm or explosive or incendiary device, or technique capable of causing injury or death to persons, knowing or having reason to know or intending that the same will be unlawfully employed for use in, or in furtherance of, a civil disorder which may in any way or degree obstruct, delay, or adversely affect commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function; or”
- “[T]ransports or manufactures for transportation in commerce any firearm, or explosive or incendiary device, knowing or having reason to know or intending that the same will be used unlawfully in furtherance of a civil disorder; or”
- “Whoever commits or attempts to commit any act to obstruct, impede, or interfere with any fireman or law enforcement officer lawfully engaged in the lawful performance of his official duties incident to and during the commission of a civil disorder which in any way or degree obstructs, delays, or adversely affects commerce or the movement of any article or commodity in commerce or the conduct or performance of any federally protected function”
Shall be fined up to $250,000.00 or imprisoned not more than five years, or both.
- “Civil disorder” means “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.C. §232(1).
- “Federally protected function” means “any function, operation, or action carried out, under the laws of the United States, by any department, agency, or instrumentality of the United States or by an officer or employee thereof; and such term shall specifically include, but not be limited to, the collection and distribution of the United States mails.” 18 U.S.C. §232(2).
ENTERING AND REMAINING IN RESTRICTED BUILDING OR GROUNDS – 18 U.S.C. §1752
“Restricted buildings or grounds” is defined as “any posted, cordoned off, or otherwise restricted area”—
- “[O]f the White House or its grounds, or the Vice President’s official residence or its grounds.” 18 U.S.C. 1752(c)(1)(A).
- “[O]f a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting.” 18 U.S.C. §1752(c)(1)(B).
- “[O]f a building or grounds so restricted in conjunction with an event designated as a special event of national significance.” 18 U.S.C. §1752(c)(1)(C).
- [K]knowingly enters or remains in any restricted building or grounds without lawful authority to do so.” 18 U.S.C. §1752(a)(1).
- “[K]nowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions.” 18 U.S.C. §1752(a)(2).
- “[K]nowingly, and with the intent to impede or disrupt the orderly conduct of Government business or official functions, obstructs or impedes ingress or egress to or from any restricted building or grounds.” 18 U.S.C. §1752(a)(3).
- “[K]nowingly engages in any act of physical violence against any person or property in any restricted building or grounds.” 18 U.S.C. §1752(a)(4).
- “[K]nowingly and willfully operates an unmanned aircraft system with the intent to knowingly and willfully direct or otherwise cause such unmanned aircraft system to enter or operate within or above a restricted building or grounds.” 18 U.S.C. §1752(a)(5).
Or attempts or conspires to do ANY of the foregoing is guilty of a crime. The penalties for entering or remaining on or in a restricted building or grounds are as follows:
- A misdemeanor conviction punishable by a fine up to $100,000.00 or up to one year imprisonment, or both. 18 U.S.C. §1752(b)(2).
- A felony conviction punishable by a fine up to $250,000.00 or up to ten years imprisonment, or both, if EITHER of the following apply:
- “[T]he person, during and in relation to the offense, uses or carries a deadly or dangerous weapon or firearm.” 18 U.S.C. §1752(b)(1)(A).
- “[T]he offense results in significant bodily injury.” 18 U.S.C. §1752(b)(1)(B).
DISORDERLY CONDUCT ON U.S. CAPITOL GROUNDS – 40 U.S.C. §5104
The following conduct at the U.S. Capitol is prohibited:
Firearms Or Dangerous Weapons: An individual or group of individuals, except as authorized by regulations prescribed by the Capitol Police Board, may not:
- “[C]arry on or have readily accessible to any individual on the Grounds or in any of the Capitol Buildings a firearm, a dangerous weapon, explosives, or an incendiary device; may not discharge a firearm or explosives, use a dangerous weapon, or ignite an incendiary device, on the Grounds or in any of the Capitol Buildings; or may not transport on the Grounds or in any of the Capitol Buildings explosives or an incendiary device, or may not knowingly, with force and violence, enter or remain on the floor of either House of Congress.” 40 U.S.C. §5104(e)(1).
A “dangerous weapon” includes “a device designed to expel or hurl a projectile capable of causing injury to individuals or property, a dagger, a dirk, a stiletto, and a knife having a blade over three inches in length.” 40 U.S.C. §5104(a)(2).
The penalty for violating 40 U.S.C. §5104(e)(1) is a felony conviction punishable by a fine up to $250,000.00 or up to five years in prison, or both. 40 U.S.C. §5109(a).
Violent Entry Or Disorderly Conduct: An individual or group of individuals may not willfully and knowingly:
- “[E]nter or remain on the floor of either House of Congress or in any cloakroom or lobby adjacent to that floor, in the Rayburn Room of the House of Representatives, or in the Marble Room of the Senate, unless authorized to do so pursuant to rules adopted, or an authorization given, by that House.” 40 U.S.C. §5104(e)(2)(A).
- “[E]nter or remain in the gallery of either House of Congress in violation of rules governing admission to the gallery adopted by that House or pursuant to an authorization given by that House.” 40 U.S.C. §5104(e)(2)(B).
- “[W]ith the intent to disrupt the orderly conduct of official business, enter or remain in a room in any of the Capitol Buildings set aside or designated for the use of either House of Congress or a Member, committee, officer, or employee of Congress, or either House of Congress, or the Library of Congress.” 40 U.S.C. §5104(e)(2)(C).
- “[U]tter loud, threatening, or abusive language, or engage in disorderly or disruptive conduct, at any place in the Grounds or in any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress or either House of Congress, or the orderly conduct in that building of a hearing before, or any deliberations of, a committee of Congress or either House of Congress.” 40 U.S.C. §5104(e)(2)(D).
- “[O]bstruct, or impede passage through or within, the Grounds or any of the Capitol Buildings.” 40 U.S.C. §5104(e)(2)(E).
- “[E]ngage in an act of physical violence in the Grounds or any of the Capitol Buildings.” 40 U.S.C. §5104(e)(2)(F). An “act of physical violence” means any act involving an assault or other infliction or threat of infliction of death or bodily harm on an individual; or damage to, or destruction of, real or personal property.” C. §5104(a)(1).
- “[P]arade, demonstrate, or picket in any of the Capitol Buildings.” 40 U.S.C. §5104(e)(2)(G).
The penalty for violating 40 U.S.C. §5104(e)(2) is a misdemeanor conviction punishable by a fine up to $5,000.00 or up to six months in prison, or both. 40 U.S.C. §5109(b).
THEFT OF GOVERNMENT PROPERTY – 18 U.S.C. §641
- “Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted shall be fined under this title or imprisoned not more than ten years, or both…”
- “[B]ut if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined up to $100,000.00 or imprisoned not more than one year, or both.”
- “The word “value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater.”
DESTRUCTION OF GOVERNMENT PROPERTY – 18 U.S.C. §1361
“Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof, or any property which has been or is being manufactured or constructed for the United States, or any department or agency thereof, or attempts to commit any of the foregoing offenses, shall be punished as follows:”
- “If the damage or attempted damage to such property exceeds the sum of $1,000, by a fine up to $250,000.00 or imprisonment for not more than ten years, or both.”
- “If the damage or attempted damage to such property does not exceed the sum of $1,000, by a fine up to $100,000.00 or by imprisonment for not more than one year, or both.”
ASSAULTING FEDERAL LAW ENFORCEMENT OFFICERS – 18 U.S.C. § 111
Federal law protects “any officer or employee of the United States or of any agency in any branch of the United States Government (including any member of the uniformed services) while such officer or employee is engaged in or on account of the performance of official duties, or any person assisting such an officer or employee in the performance of such duties or on account of that assistance.” 18 U.S.C. §1114(a). This is very broad and applies to essential every single person working for the government who is on the clock.
In general, whoever –
- “Forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in [18 U.S.C. §1114(a)] while engaged in or on account of the performance of official duties” (18 U.S.C. §111(a)(1)); OR
- “Forcibly assaults or intimidates any person who formerly served as a person designated in [18 U.S.C. §1114(a)] on account of the performance of official duties during such person’s term of service” (18 U.S.C. §111(a)(2)),
Is subject to the following penalties:
- “Where the acts in violation… constitute only simple assault, shall be guilty of a misdemeanor punishable by a fine [up to $100,000.00] or imprisonment up to one year, or both.”
- “Where such acts involve physical contact with the victim of that assault or the intent to commit another felony, shall be guilty of a felony punishable by a fine [up to $250,000.00] or imprisonment up to 8 years, or both.”
- “If the offender uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, then he shall be guilty of a felony subject to the enhanced penalty of up to 20 years of imprisonment. 18 U.S.C. §111(b).”
SEDITIOUS CONSPIRACY – 18 U.S.C. §2384
This is the most serious offense that can be charged and may result in stiffer penalties for the individuals that were not actually present at the U.S. Capitol but participated in any encouragement, planning and even providing material provisions to the rioters.
“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 [up to $250,000.00] or imprisoned not more than twenty years, or both.”
THREATENING TO KILL, KIDNAP OR HARM VICE PRESIDENT AND OTHER PERSONS – 18 U.S.C. §879
In one of the more horrifying episodes of the January 6th riots, some participants erected a gallows and indicated that they were going to locate Vice President Mike Pence and execute him by hanging as a traitor. However, these threats constitute a serious crime.
Whoever knowingly and willfully threatens to kill, kidnap, or inflict bodily harm upon—
- A former President or a member of the immediate family of a former President;
- A member of the immediate family of the President, the President-elect, the Vice President, or the Vice President-elect;
- A major candidate for the office of President or Vice President, or a member of the immediate family of such candidate; or
- A person protected by the Secret Service…;
Shall be fined up to $250,000.00 or imprisoned not more than 5 years, or both. 18 U.S.C. §879
THE FIRST AMENDMENT MAY NOT PROTECT THESE DEFENDANTS FROM PROSECUTION
In the slew of prosecutions that followed the January 6th attacks, a number of justifications have been put forward by individuals charged with involvement. Some will claim that they should be protected because they were following the commands of the President of the United States. Some others will allege that they are the victims of malicious prosecution and they are only being charged due to their political affiliations. Others may go as far to say that they were engaged in lawful protest and that their words and actions are protected by the First Amendment of the U.S. Constitution.
Unfortunately for all involved, the First Amendment protects the peaceful expression of ideas and viewpoints (even hate speech), but it does not protect against overt threats to harm or kill others, destruction of government property, or interfering with lawful government processes. A more successful defense to assert would be that the accused was a mere bystander or, even better, someone that is lawfully placed to chronicle or report to what was unfolding for the benefit of history. Of course, anyone asserting this defense would have to be sure that he or she was not captured on video actually assaulting anyone, entering restricted areas or damaging government property. It is not good enough to state that one was “caught up in the mob”. Anyone charged with being involved in the Jan 6th riots needs to have a good criminal defense lawyer in their corner.
If you or a loved one are accused of any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.