By Andrew Bell
Faculty Member, Criminal Justice
and Bruce Razey
35-year police veteran
This is the final article in a three-part series on the riot that occurred at the Capitol Building on January 6, 2021. In this series, we will explore potential key questions, failures, outcomes and implications to the criminal justice system concerning what will likely be known as the most infamous riot in modern history. Read the first and second article in this series.
Can what the President said prior to the D.C. riot be considered a crime? House Representatives voted to impeach the President on the one charge of “incitement of insurrection.” While Congress is not a court, impeachment is a quasi-criminal process with the House acting like a grand jury and the Senate as the trial court.
Impeachments start with the charges of “high crimes and misdemeanors.” To us, as previous detective supervisors, that equates to offenses that are felonies (high crimes) and misdemeanors (lesser but still criminal offenses).
Start a Criminal Justice degree at American Military University.
In addition, the U.S. criminal justice system is adversarial, with a prosecution and a defense. No one is sure who will represent the President or what defense will be provided.
There was a rumor that Rudy Giuliani would be part of that representation. However, Giuliani recused himself from defending Trump because he was part of the rally and witnessed the President’s speech. Although we have seen it on TV, attorneys cannot defend or prosecute someone when the attorney was a co-conspirator or witnessed the actions of the accused.
The Rules of Impeachment
The rules of impeachment are very similar to the rules of the criminal court. But other, more complex questions to consider are:
- Since the impeachment trial is not a criminal court trial, is there a double jeopardy rule?
- Can the President, once out of office, still face criminal charges?
According to the Constitution, Article 1, Section 3, Clause 7, the answer is yes. The Constitution states, “the Party convicted [Impeached] shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
What will be the President’s defense on the charge of inciting insurrection? The one and only defense must be based on his First Amendment rights.
This debate is not new. The most famous and most quoted constitutional analogy on the subject is “Falsely Shouting ‘Fire’ in a Crowded Theater.” Those words were spoken by Supreme Court Judge Oliver Wendell Holmes in the 1919 case U.S. v. Schenck, which created a doctrine of “clear and present danger” as a guide to when free speech is not protected.
Although the case had nothing to do with fire, it did set the stage for future debates and cases concerning constitutional rights. Later in Brandenburg v. Ohio (1969), the Court overturned Schenck and some say rendered Holmes’ analogy inaccurate for determining free speech.
The Brandenburg case gave more latitude for the types of free speech and indicated that even hate speech from KKK members is protected if it does not provoke imminent violence. The Supreme Court also replaced the “clear and present danger” doctrine with one of “imminent lawless action” and that the intent for lawless action must also be “likely.” Some legal sources use the word “immediate” or cause “immediate harm” to describe the action, rather than just some action that occurs sometime in the future.
Although they have been debunked, the “fire” analogy and “clear and present danger” doctrine lives on and may still influence Trump’s impeachment debate. A study from the College of William and Mary showed that the falsely-shouting-fire-in-a-crowded-theater analogy is still the most used analogy by people and courts on framing First Amendment issues.
More interesting, the study showed the analogy has been shortened by both citizens and courts, usually omitting the word “falsely” from it. Courts that left out the word “falsely” were more likely to rule against the language as protected, and when accurately cited, the court was more likely to rule in favor of the speech as protected.
Intent Matters in Judging an Incitement to Riot
But there is another factor to be considered in judging an incitement to riot, critical to all criminal cases. The prosecution must prove intent.
For the “fire” analogy, intent would be proven if a reasonable person would believe that by “falsely shouting fire,” that would cause “immediate lawless action, likely to (which was added in the Brandenburg case) injure people and damage property. While the President appears to be standing by the words in his speech just before the riot, he is distancing himself from the “intent.” However, as we stated, it is not what a specific person believes, but what a “reasonable person” believes.
One final point about criminal law that may come into play is that courts only hear disputes (cases and controversies). They will not hear cases that are moot (no longer a controversy).
The purpose of impeachment is to remove the sitting President. However, as of 12 p.m. on January 20, Trump was no longer President.
Does that end the controversy and make the case moot? While this is an interesting point, it is clear that Congress is not a court, and it is not clear what Congress will do regarding Trump in the future.
What Will Happen to the Extremist Groups Involved in the DC Riot?
What about extremist groups? Numerous extremist groups involved in the D.C. riot have been identified by law enforcement. Not surprisingly, members of those groups identified themselves on social media, leaving a clear trail of evidence for charges.
One social media site frequented by the Q’Anon group even posted about “Operation Occupy the Capitol” prior to the DC riot, vowing to kill cops, security guards and federal agents. Some of the other groups that were identified as violent actors at the rally were the Proud Boys, Oath Keepers, Groyper Army and Boogaloo Bois.
There was even speculation that the anti-Trump group Antifa would be there and clash with pro-Trump protesters, but those claims were exposed as false. However, law enforcement does not charge organizations; they charge and prosecute individuals. Several individuals from these organizations were arrested for felonies and will likely face additional conspiracy charges stemming from their association with these groups and the actions of others in the same group.
In the meantime, law enforcement continues to look at and arrest individuals for a long list of charges. Those charges include:
- Assaulting police officers
- Assault with a weapon (i.e.; bear chemical spray, flag poles, fire extinguishers and police weapons)
- Possession of firearms
- Making and possessing explosive devices
- Making threats against individuals (the Vice President and others)
- Damage and theft of federal property
- Disorderly conduct (threats to fight and violence in general)
- Trespassing on federal property
Conspiracy to commit a crime will be an additional charge. The offenders are being identified as current and former military servicemembers, police officers, and other citizens from all walks of life.
Less clear is the criminal liability, if any, of the group(s) that supported and participated in the rally at the Ellipse. The Women for America First group, led by Amy Kremer, obtained the permit for the rally. She indicated on the permit application that 5,000 people would attend.
However, several days before the event, the Women for America First website indicated the number attending would be many times greater than what was listed on the permit. After the riot, the organization denounced the violence but indicated that hundreds of thousands of people attended the event.
Could the event’s leader be considered as violating a law? Probably not.
If information on the permit was identified as incorrect or even false prior to the event, the permit would have been revoked. That does not mean, however, that there is no civil liability in failing to notify the National Park Service of the increase in projected crowd number or in the resulting riot.
Also, a few Capitol police officers are under investigation for their part in abandoning their posts and assisting or mingling with rioters. One officer even took a selfie with some of the rioters. These cases will be investigated and will result in disciplinary and potential criminal action. The officers’ behavior is not likely criminal in nature, but it is most insulting to current and former police officers.
Arresting People Is One Thing; Convicting Is Another
It is clear that many of those rioters inside the Capitol destroyed property and assaulted police. But what about those further back in the crowd, the ones who saw what was happening and decided to stay and watch the show?
Also, what about the “rioters” stopping to help police that were trampled or injured by others? Where will law enforcement draw the line in separating peaceful demonstrators from the rioters? Where will prosecutors draw the line between terrorist action versus just trespassers or unlawful assemblers?
What about conspirators and co-conspirators? Will those who sold equipment or aided these rioters (terrorists) with intelligence about the Capitol Building be charged?
Another question is how will prosecutions proceed and what will be the outcome? Based on previous prosecutions for rioting in D.C. and other cities and states across the country, many times prosecutors drop most of the cases and courts are not willing to convict.
Some sources say that those who were arrested were just “caught up in the moment/movement.” As a result, the prosecution of cases of free speech and assembly are likely not to win in court.
As police officers, we saw this play out in riots in Virginia and across the country. However, these trials will also be displayed across the international stage and viewed by the eyes of the world.
Moving Forward after the DC Riot
A few days after the Capitol attack, a friend of ours got a call from his elderly mother. She was afraid and did not know what to do. Another relative told her to take cash out of her bank and fill her car with gas in preparation for what might happen around the inauguration.
Apparently, they were not the only ones worried. The Pentagon indicated that there were about 16 hardline pro-Trump groups, some claiming to be armed, that registered to protest during the Biden inauguration. However, the inauguration ceremonies were peaceful due to strong security precautions.
There is now an element of doubt and fear in society that law enforcement cannot be trusted to enforce the rule of law and keep people safe. That trust will need to be earned again, and the government at all levels will need to do their best to reduce that fear.
What we see now is the start of that process. Leaders across the country are using the “better safe than sorry method” of policing, in what can only be described as a lockdown of all state and federal offices. In addition, walls around the Capitol are reminiscent of the U.S. border with Mexico, with swift and certain action against those who would make any attempt to challenge the rule of law.
As former law enforcement officers and military veterans, we are embarrassed to see other veterans and law enforcement officers failing to uphold their oath of office. However, we believe that the rioters do not represent the majority of police, veterans and citizens of this country.
Over the last few years, many law enforcement officers have been disheartened by the tremendous condemnation of the police profession and calls for defunding police. The riot at the Capitol confirms that police must always be properly trained and equipped, and they must also be prepared to use necessary force to keep all Americans safe.
About the Authors
Andrew Bell has more than 20 years of law enforcement experience and 25 years in the U.S. military and civilian service. He served as a patrol officer, detective, patrol sergeant, community policing supervisor, school resource supervisor and detective supervisor. He was called to active duty with U.S. Army Reserve after 9/11 and completed a tour in Afghanistan. He was part of the Army Logistics Corps and worked in various positions in operations, planning, and various leadership positions.
Andrew also worked for the U.S. federal government in Army intelligence, Army capabilities unit and emergency operations. He holds a master’s degree in public administration and a bachelor of science degree with a concentration in criminal justice. Andrew has been a faculty member of American Military University since 2004. Andrew has authored and co-authored many published police and military articles that focus on prominent police issues like use of force, de-escalation, investigations, strategies, and riots and protests. He is also the co-author of the fiction series, “Cops of Acadia.”
Bruce Razey began his law enforcement career in 1975. During his 35-year career, he worked for three diverse police departments. Bruce served in patrol operations, special operations and the investigative division. His assignments included field training officer, air unit coordinator/observer, field training supervisor, community policing supervisor, detective supervisor and committee chairman for internal affairs review unit. He served on numerous hiring and promotional boards; authored and co-authored policies and procedures; created lesson plans to instruct new and veteran officers in a variety of topics; and established policy and guidelines for an improved method of conducting police lineups and eye-witness testimony.
Bruce holds a bachelor of science degree in criminology from the University of Saint Leo, Florida. He graduated number one from the Regional Police Academy and from the West Point Leadership & Management Training Course. Bruce has co-authored many published police articles that focus on prominent police issues like use of force, de-escalation, investigations, strategies, and riots and protests. He is also the co-author of the fiction series, “Cops of Acadia.”