Robbins: With what crimes might the Capitol rioters be charged?
Things change slowly.
Until they change suddenly.
Last Wednesday was this generation’s Edmund Pettus Bridge when those slumbering in Trump’s shadow suddenly woke up. Whoa! Not this far!
I’ll leave the politics out of it; every American is entitled to believe what he or she believes. That’s not the point. The point is that in America, we do not storm the Capitol and, like some Banana Republic, hunt down our legislators to be maimed or hung from a public gallows.
If you know even a little of your history of the Civil Rights movement, you know that the Edmund Pettus Bridge in Selma was literally, and figurately, a bridge too far. When peaceful demonstrators in 1965 tried to march across the bridge in solidarity and protest, with cameras rolling, and the whole world watching, law enforcement set upon the unarmed marchers with dogs and clubs, in what would become known as Bloody Sunday. When comfortable America witnessed the wanton violence on their TV screens, suddenly they startled into action.
It was a turning point.
Wednesday last was like that.
With what, then, might the DC rioters be charged?
The list is long.
Let’s start with trespass and breaking and entering. If you saw what you saw, this requires little explanation. Add to it destruction of public property, theft, and assault on law enforcement officers. Again, if you witnessed the loops endlessly spooling across your screen, little enlightenment is necessary.
Then there is the murder of a Capitol police officer with which someone, or several someones, will surely be charged and which considerably upped the ante. At least one “protester” with explosive devices in his car has been arrested as have some yahoos with weapons intended to be deployed for violence. As a quick aside, this has little if anything to do with the Second Amendment and right to bear arms. Yes, as the courts have interpreted the Second Amendment, most citizens have the right to bear arms. But there is a broad chasm between that right and deploying arms in violence or with the intent to gratuitously commit harm.
What about sedition, conspiracy, and accomplice liability?
Let’s indulge a moment in some definitions.
Think of sedition as revolt.
Sedition is the crime of revolting or inciting revolt against the government. However, owing to the broad protections of free speech under the First Amendment, historically, prosecutions for sedition are rare. Nonetheless, sedition remains a federal crime under 18 U.S.C. §2384 which punishes seditious conspiracy, and 18 U.S.C. §2385 which outlaws advocating for the overthrow of the federal government by force. Speaking generally, a person may be punished for sedition only when she or he makes statements that create a “clear and present danger” to rights that the government may lawfully protect (for a seminal case in this arena, see Schenck v. United States, 249 U.S. 47 about which I will write in an upcoming column).
The crime of seditious conspiracy is committed when two or more persons in any state or U.S. territory conspire to levy war against the U.S. government. A person commits the crime of advocating the violent overthrow of the federal government when she or he willfully advocates or teaches the overthrow of the government by force, or organizes persons to do so. One found guilty of seditious conspiracy may be fined and sentenced for to up to 20 years in prison.
“Conspiracy” is a little slippery. It may be defined as an agreement between two or more persons to engage in an unlawful act but may also require some “overt act” in furtherance of the crime. If realized, it is a separate crime from the criminal act for which it is developed. If one conspires with another to commit a crime and then, in fact commits the crime, the perpetrators can be charged both with the crime itself and with conspiracy to commit the crime.
Among a couple of last things — although the foregoing is not an exhaustive list — is accomplice liability. Think of it as “complicity,” the act of helping or encouraging another to commit a crime. “Aiding and abetting” are familiar concepts. One who is complicit is an accomplice to the crime and although she or he is not the one who actually commits the crime, she or he may face the same degree of guilt and punishment as the individual who committed the wrongful act(s).
Lastly, felony murder. Under the felony murder rule, if a person is killed during the commission of a crime, all of those involved in the crime may be charged with murder even if they did not commit the murder. This can extend as far as a getaway driver sitting in a car outside the premises where the killing took place so long as she or he was a part of the criminal scheme. Similarly, even when one of the persons engaging in the criminal act is the one who is killed, his or her co-actors may be charged in his or her death. How far this may extend in the five deaths at the Capitol remains to be seen.
This is just a glimpse. Expect heads at least metaphorically to roll.
You’ll note that I left Trump, the Trump progeny, and Giuliani out of this. That is, perhaps, a subject for another day.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926.4461 or at his e-mail address: Rrobbins@CELaw.com. His new novel, "How to Raise a Shark (an apocryphal tale)", is available at Amazon.com.