What Charges Could the Rioters Face?

So about 70 rioters have been arrested on a series of relatively low level charges, everything from trespassing to guns. However, people want to know why we aren’t seeing sedition, kidnapping, attempted murder. After all, the rioters built a scaffold for Mike Pence in front of the Capitol. What about the guy with the zip tie handcuffs?  All I have to say is . . . patience.

I am a criminal defense attorney, former prosecutor and former U.S. Federal Officer. I usually step in after a case is charged and then contemplate and deal with how the government handled the case and what they did or might do.  As I watch this, I can’t help but think closely about the investigation, the search warrants, the interrogations.  Let me be clear, these Agents and Officers are angry. Their people got hurt, killed and humiliated. They weren’t up to the job at the time and it shows. They hate that and they won’t let it slide. Neither will prosecutors.  

They hate that and they won’t let it slide. Neither will prosecutors

What exactly are they going to do? Well, to start with, investigators have a secret weapon. They have access to extraordinary amounts of data thanks to the media, the internet and phones carried by the perpetrators themselves who were live streaming the details along the way. Here’s a hint. Watch them start small and catapult out from there.  

Possible Charges 

The simplest charges may seem insufficient but they provide a justification. They give officers access. They get to interrogate, get warrants for phones, emails, all social media. They get to see plans. They take statements. The simplest charges are the very ones that lead to the biggest one, the underlying conspiracies.  This is what officers and agents are really looking for. Always keep this in mind. So, where does it start?

Unlawful Entry on Capitol Grounds:  This is one of the easiest charges to prove and more than 40 have already been cited as a result. All you really need is to identify people inside Capitol grounds based upon videos or still photos. Facial recognition and image enhancement software scanning the internet makes this pretty easy and hard to refute in front of a jury.  Its likely that other charges could be added alongside these down the road. Expect a lot of these charges in the relatively near future. Remember, this is about getting somebody in a room and starting with, “Why are you a Patriot?”

Remember, this is about getting somebody in a room and starting with, “Why are you a Patriot?”

Curfew violations: The Mayor of Washington DC had noticed a curfew for 6 p.m. and this is another of those “low hanging fruit” charges that are particularly easy to prove. Do they really care? Not really unless this could lead to something bigger. This is a Superior Court charge.

Theft and Destruction of Federal Property:  Investigators will certainly depend upon video and photo to identify these individuals.  Again, think the Pelosi lectern guy. These kinds of charges, as they are Federal, can actually be more serious than one might expect. As importantly, they get phones and text and conversations and plans.

Weapons charges:  More than 50 have already been charged in both Federal Court and Washington DC Superior Court with weapons charges and these are some of the most serious. These can be tied to simply carrying unregistered weapons and ammunition to a more serious Federal charge of carrying a weapons into a Federal building. The pipe bombs founds at the RNC and DNC rise to another level altogether.  See 18 USC 842 regarding explosives. In the end, the question is why did they have weapons? What was the plan? Were others involved?

Assault of Officers:  There were at least 50 officers injured and 2 hospitalized as a result of the rioters.  These are Felony charges in both Federal and Superior Court. Officers have reported being assault by metal pipes, pepper spray and other weapons including in one case, a hockey stick. They want to know who helped and this will be a major focus of the investigation and the end game for some prosecutions. And yet, the motivation behind the assaults could bring even bigger charges.

Murder/Attempted Murder/ Felony Murder:  One officer died in the melee. This will be a hunt and investigators want those responsible.  If found, they likely face murder or manslaughter charges.  Felony murder is an easier option as prosecutors only need somebody committing a violent crimes and somebody happens to die.  They don’t even need intent  We might see this employed.   

Sedition:  The law prohibits conspiring to “overthrow, put down, or to destroy by force” the U.S. government. Thankfully, many of these Yahoos seem to have made it pretty easy. In the old days, we would have said miles and miles of tape. There is lot of video and statements and text messages to clarify desire and plans and hopes and dreams. This is the motherlode charge. It takes times and effort before charges are filed but let’s be clear, the Feds want this. 

You don’t get to embarrass, scare, hurt and kill officers and public figures and assume you are simply going to walk

This takes us back to the beginning. Where are the attempted murder and kidnapping charges? The conspiracy charges?  Attempts to assault members of Congress? These are the ones that will come from the interrogations and the unlawful entry charges. What is requires is that the perpetrator take a major step in implementing a plan. You go into the Capitol looking for a member of Congress with a gun or zip tie handcuffs, that’s quite a step.  

As a criminal defense attorney, my job is to prepare for what the government has or will throw at me and maybe what they should have thrown at me.  For these rioters, it is going to get serious. You don’t get to embarrass, scare, hurt and kill officers and public figures and assume you are simply going to walk.