Sunday, January 10, 2021

Lawfare — Here’s How the Capitol Mob Violated Federal Criminal Law

The extensive video evidence and crowds of people involved in yesterday’s mayhem give rise to a plethora of potential criminal charges against a large number of criminal suspects. Here, we spell out some of the potential federal criminal statutes that could apply to yesterday’s conduct. It's not intended to be an all-encompassing list and will likely grow as more reporting emerges about what exactly happened on Capitol Hill. Nor do we directly address President Trump’s potential legal exposure, a subject that raises complicated questions of presidential liability to criminal prosecution.

Criminal law is highly fact-specific, and there are still many unanswered questions about what precisely occurred yesterday in any given incident and who had what level of involvement in planning or executing the acts that made up the mob violence. But here is a rough list of plausible factual predicates for any follow-on prosecution under federal law:
 I assume that the Capitol security surveillance system recorded events in great detail.
But at the end of the day, yesterday’s attack on the Capitol creates a target-rich environment for prosecutors. As it turns out, you can’t physically assault the peaceful transition of power without breaking a mess of federal laws along the way.
The demonstrators should have realized that as soon as they entered the Capitol, they were in legal jeopardy. Some are going to find out the hard way that they stepped over a line.

Here’s How the Capitol Mob Violated Federal Criminal Law
Bryce KlehmAlan Z. Rozenshtein, and Jacob Schulz

See also
A Pentagon memo offers one version of events — six days of preparation for a rally that quickly spiraled out of control.
Pro Publica
Joshua Kaplan

Here are two opposing views. 

No room for compromise. This is a struggle over the soul of the nation.

For the left
Certainly now the failed putsch ought to shut up the vast swath of Trumpenleft and other failed thinkers who have insisted on denying that Trump and much of his base are fascists. Last Friday’s New York Times included Paul Krugman’s obviously accurate editorial observation that “Donald Trump…is indeed a fascist – an authoritarian willing to use violence to achieve his racial nationalist goals. So are many of his supporters. If you had any doubts, Wednesday’s attack should have ended them.”…
A frequent keyword from the Democratic media and politics establishment is reconciliation. It’s a dangerous and foolish aspiration. There can and should be no patching up of differences with fascists, whose “grievances” reflect maniacal bitterness over any checks on white supremacy, male supremacy, xenophobia, vengeful nationalism, military barbarism, and eco-cide.

The better word for the Democrats’ approach is appeasement. “And if history teaches us one lesson about dealing with fascists,” Krugman had the decency to note two days ago “it is the futility of appeasement. Giving in to fascists doesn’t pacify them, it just encourages them to go further… 
The Failed Fascist Coup and the Futility of “Reconciliation”
Paul Street
Americans were shocked to watch as American stormtroopers assaulted the U. S. capitol building, smashing windows, roaming through the building and the floors of both Senate and House, including sitting in the seat of the Senate's presiding officer, leaving incendiary devices nearby, etc.).

This was more than a whiff of fascism. This is what fascism looks like.
So, we have to ask: beyond the lying, insurrection-instigating, so-called President, how did we get here?

The story actually goes a long way back....
Ted Morgan, Salon

For the right
...there’s hope to be found in this situation because progressives aren’t leaving ordinary Americans any way out. There are no more “conservatives” because there’s nothing left to conserve. There are just patriots on the one hand and collaborators with an increasingly hostile and hateful regime on the other....
US Capitol Protest: Ruling Class Tantrum Shows Americans We Must All Hang Together
James Kirkpatrick

PCR games a civil war based on the (false) assumption that the election was stolen from Donald Trump.

Paul Craig Roberts
Is America’s Future a Civil War?

See also

Jonathan Turley offers an opinion based on his lawyerly expertise'

A Crisis Of Faith: Why We Should Be Worried More About A Desecration Than An Insurrection

Another lawyerly opinion
It would be better to make a case around provable facts rather than a matter of judgment.…
The draft article of impeachment characterizes the president’s impeachable conduct as “Incitement of Insurrection.” After all, Trump had fanned the flames that led to the events on January 6 for months with baseless claims of election fraud. And just hours before the deadly mob attack, at a rally down the street, he encouraged his mass of supporters, who had gathered in D.C. in the thousands, “to fight much harder” and to head toward the Capitol “to show strength.”

But the charge as written not only makes bipartisan support difficult; it also creates a hornet’s nest of legal argumentation—about the First Amendment, how to prove “incitement” and the meaning of “insurrection”—that could complicate and impede Senate conviction. The attack on the Capitol can be more simply, and less controversially, stated in terms of the federal crime of “seditious conspiracy.”...
Because “seditious conspiracy” perfectly describes the crimes committed on January 6, why not make the straightforward charge that Trump was a party to this conspiracy? Someone can be considered part of a criminal conspiracy even if they did not know “all the details of the crime or all of the members of the conspiracy,” as long as they shared the general objective of the conspiracy, which could be stated in this case as simply as: to use force or the threat of force to prevent Congress and the vice president from counting and announcing certified electoral votes for president on the date and at the time set by law.…
Two additional articles of impeachment could be grounded on the federal law making it a crime to use “official authority for the purpose of interfering with, or affecting, the election for the office of President.” …
But Trump’s role in promoting the Capitol riot is not the only recent action that could justify impeachment. It’s not only possible but strategic to include multiple additional charges, so that there might be a greater chance of winning significant GOP backing for some counts, even if not for all of them....
The most critical reason for sending articles of impeachment to the Senate is to provide an insurance policy against further grave misconduct during the remaining days of Trump’s presidency. Even if the Republican-controlled Senate is not currently inclined to consider reconvening for a trial in the next 10 days, the option for swift removal of the president would be available if a new crisis developed. And the Senate need only convict on one charge to do so.

Finally, there are good arguments that the Senate could render judgment on articles of impeachment even after Biden’s inauguration by exercising its constitutional authority to disqualify Trump from ever again holding “any Office of honor, Trust, or Profit under the United States.” If the new Democratic majority wants to initiate a searching inquiry into Trump’s involvement in the Capitol riot, an article framed in terms of seditious conspiracy would sufficiently support such action.
Democrats Are Pursuing the Wrong Impeachment Charges Against President Trump
Clark D. Cunningham | professor of legal ethics, constitutional law and legal interpretation at Georgia State University College of Law.

See also

More fuel for the fire.

Don Jr. filmed Trump family's pre-insurrection watch party — and the president before his incitement speech
The New Civil Rights Movement

Informed Comment
What were those Horrifying Anti-Jewish Hate Symbols at the Capitol Insurrection? A Scholar of American Anti-Semitism Explains
Juan Cole


Andrew Anderson said...

My son, fear the Lord and the king;
Do not associate with those who are given to change,
For their calamity will rise suddenly,
And who knows the ruin that comes from both of them?
Proverbs 24:21-23

That said, we'd do very well to have an election system beyond any reproach.

Peter Pan said...

There are authoritarians and there are those who make authoritarianism inevitable. The ruling class and their propaganda arm are doing everything they can to make authoritarianism inevitable.

(Polemicists will substitute fascism for authoritarianism, yet the historical definition makes clear which players in the current drama are the fascists.)

Tom Hickey said...

Politics is about power and control. This is a reason that libertarians, anarchists, and fellow travelers want to get rid of government or least greatly limit its reach over lives and property (think "taxes").

But human nature being what it is, a group of people without governance is no guarantee that the rule of the jungle, that is, of the stronger, won't dominate.

Politics is about power and control because people seek power and control. The rule of law rather than the rule of men is an answer but there are many variations of this. In reality, the rule of law per se doesn't obviate the rule of men intruding, since laws need to be made in general, specifically interpreted in context, and enforced by an authority.

This is one of the most basic issues in social and political philosophy, and there are many approaches to it.

Because it is still unanswered in the sense that no one system prevails and is uncontested, it remains one of the "enduring questions."

Peter Pan said...

All they had to do was allow ordinary people to put a roof over their heads and food on the table. Would that have infringed on their power and control?

The mentality of the ruling class remains mired in the jungle. Its one of the reasons that civilizations are destined for failure.

Andrew Anderson said...

All they had to do was allow ordinary people to put a roof over their heads and food on the table. Peter Pan

Yes except two root causes conspire against that, both contrary to the Bible:

1) Government privileges for private credit creation.

2) No limits to the concentration of land ownership, especially agricultural land.

Btw, so far, the MMT School proposes to do nothing about either.

Tom Hickey said...

All they had to do was allow ordinary people to put a roof over their heads and food on the table. Would that have infringed on their power and control? The mentality of the ruling class remains mired in the jungle. Its one of the reasons that civilizations are destined for failure.

The incentive to accumulate — position, power and wealth is a "natural" one. It is an extension of evolutionary traits that benefit survival and reproduction of individuals and their in-groups.

This problem won't be overcome entirely until humans view humanity as their in-group.

It's not all bad. We are making some progress in that direction as a species.

Andrew Anderson said...

This problem won't be overcome entirely until humans view humanity as their in-group. Tom Hickey

That's pretty much true now yet we still have, for example, Christians in the US oppressing fellow Christians in the US because that's the way the system is set up - contrary to the Bible they purport to believe.

Ahmed Fares said...

re: power and control and the "enduring question"

There is a single reality and different perceptions of that reality. Here is our perception of reality:

His Will
He Most High wills all that exists and directs all events. Nothing occurs in the physical or spiritual world, be it meager or much, little or great, good or evil, of benefit or detriment, faith or unbelief, knowledge or ignorance, triumph or ruin, increase or decrease, obedience or sin; save through His ordinance, apportionment, wisdom, and decision. What He wills is, and what He does not will is not. Neither sidelong glance nor passing thought is beyond His design. He originates all and returns it, does what He wills, and none can repulse His command. There is no rescinding His destiny, no flight for a servant from disobeying Him except through divinely given success therein and mercy, and no strength to obey Him save through His choice and decree. If all mankind, jinn, angels, and devils combined their efforts to move or to still a single particle of the universe without His will and choice, they would be unable to. His will, like His other attributes, exists in His entity and He ever possesses it. He has willed from preeternity the existence of all things at the times He has chosen. They occur at the times which He has destined from beginingless eternity, occurring neither before nor after, but taking place in accordance with His knowledge and will, without substitution or alteration. He directs events without successive thoughts or waiting for time to elapse, which is why nothing diverts Him from anything else.

—Ghazali (The Jerusalem Treatise)

Nor is this enough; it is a contradiction for all the angels and demons together to be able to move a wisp of straw. —Nicolas Malebranche

Peter Pan said...

Calgacus said...

Peter Pan:All they had to do was allow ordinary people to put a roof over their heads and food on the table. Would that have infringed on their power and control?

Yes, of course. Enormously and decisively. It's a major step out of naivete to realize this. This prevention is the primary and conscious means that rulers maintain power and control, not some inadvertent side effect.