Many Americans watching in horror Wednesday as pro-Trump rioters stormed the Capitol noticed that in all the footage of clashes and violence in Washington, there were very few arrests. The U.S. Capitol Police, somehow unprepared to handle the mass of protesters, focused on managing the crowds and pushing rioters from the building. As of Wednesday night, reports indicated that D.C. police had arrested 13 people, and Capitol Police had not said if it made any additional arrests.
But a wave of arrests will likely follow. There are hours of footage and countless dramatic photos revealing the faces of the often maskless rioters breaching the Capitol, seizing property, lounging in legislators’ offices, and parading through the halls. There’s likely also security and body camera footage. And it won’t be too hard for prosecutors to identify those involved.
There are a number of misdemeanor and felony charges that could be levied against the rioters. According to Channing Phillips, who served as acting U.S. attorney for the District of Columbia from 2015 to 2017, some of the local and federal charges prosecutors might consider include felony destruction of government property, weapons-related offenses, assault, and rioting. These could carry simply fines—or years in prison. In some cases, it will be hard to tell what laws rioters might have broken beyond minor offenses, such as failing to leave the Capitol grounds when ordered by police.
Those who breached the Capitol itself are likely to face more severe charges, as are those who assaulted police officers. Alex Little, a former assistant U.S. attorney, said he expects that prosecutors might hit several insurrectionists with unlawful entry and destruction of property misdemeanor charges as a placeholder “to get folks into the system” while they sort out if they should face more serious penalties.
When the authorities begin to piece together those who led the charge into the Capitol or most directly incited violence, they can turn to even more serious charges. According to Matt Jones, a former assistant U.S. attorney for D.C., it’s unlikely prosecutors would treat this case like a typical protest, which might result in charges like trespassing or disrupting congressional operations. “What we’re seeing there is far different,” he said. “These are grave threats to our democratic institutions.” Jones said that there are a number of serious federal criminal laws that would likely apply—and a few others that are almost never invoked, such as those against seditious conspiracy.
Seditious conspiracy applies when multiple people “conspire to overthrow, put down, or to destroy by force the Government of the United States, or … 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.” The charge can come with 20 years in prison.
“This was an effort, it appears, to undermine the lawful functioning of fundamental processes of our democracy,” Jones said. “I’m sure the U.S. attorney for the District of Columbia is going to be dusting off those law books and looking through the statutes that are sufficient to fit the seriousness of the crimes here.”
According to Carissa Byrne Hessick, a criminal law professor at the University of North Carolina at Chapel Hill, prosecutors might also consider federal terrorism charges. And any other criminal charges committed during an act of terrorism would then come with a “big bump-up” in their sentencing. “Because people were targeting the federal government, that’s going to multiply the punishment well beyond if someone targeted a CVS or something or were stealing sneakers in a riot.” As a result, she said, “I think a lot of people went to D.C. not appreciating the sorts of crimes they could be charged with and the penalties they could be facing. … The target of the violence was the U.S. government itself. And so that changes things and brings a whole new category of laws into play.”
It is up to the attorney general and the U.S. attorney in D.C. to decide how these cases will be handled. “I think any time you prosecute a case like this, it’s a historical event in a negative way, and the question will be how the Department of Justice will charge and what message that will send,” Little said. So the prosecutors may decide to hit just a few people with very serious charges, or charge large numbers of people with minor crimes, or both.
Legal experts agree that any leaders identified will face many years in prison. (If anyone is found to be connected to the two reported pipe bombs, that will be its own serious crime.) Those on the scene when a woman was fatally shot could face increased penalties as well, even if a police officer fired the fatal shot. “From a prosecutor’s perspective, the fact that someone died as a result of the chaos today will heighten the sense that there needs to be accountability for those who were responsible for fomenting the violence,” Jones said.
Ultimately, the prosecutors involved will have to think carefully about resources. “It may be a challenge,” Jones said. “There are so many people involved and the prosecutors will have to make fine-grained distinctions between those engaged in lawful First Amendment activities and those who were pressing into the area of sedition and violent attempts to obstruct the lawful functioning of government.” Still, after the J20 protest, during Trump’s inauguration in 2017, and after Black Lives Matter protests, police “went to great lengths” to identify who did what. “That will take work but can and will be done here,” he said.
There’s still the possibility that Trump could preemptively pardon the rioters in his last days in office. But if that doesn’t happen, D.C. prosecutors will be facing an unprecedented situation. “What makes this different is it appears to have been motivated by an attempt to prevent the lawful transfer of power,” Jones said. “It’s the violence and breadth of the criminality.”