Road map: How Capitol riot prosecutions could play out

On Wednesday, Jan. 6, Donald Trump commanded his supporters to go to the U.S. Capitol to interfere with the counting of the states’ certified presidential election results; his supporters (some openly and heavily armed and wearing fatigues) then marched on the Capitol and tried to ransack it. Five people died during the ensuing melee, including a U.S. Capitol police officer. How can the criminal justice process help hold the planners, sponsors and participants accountable? A short primer might help guide the discussion.

First, the primary jurisdiction for any investigation or prosecution of the assault on the Capitol is the District of Columbia, which is not a state but a federal district. Washington is the city located within and having the same boundaries as the District of Columbia. As a result, federal law applies to any potential criminal misconduct occurring there. In addition, under the District of Columbia Home Rule Act, a D.C. criminal code exists, much like state law. Unlike a state, however, the U.S. Attorney’s Office — the federal prosecutor — handles both local offenses and federal statutory offenses in Washington, D.C.

Other jurisdictions also may have the ability to investigate and prosecute individuals or groups for conduct relating to the siege of the Capitol. For example, if someone helped plan the insurrection from Florida or Maryland or any other state, those state authorities (both local and federal) could investigate and possibly charge that person for crimes, even though the actual attack occurred in Washington, D.C. In all likelihood, any state or local prosecutor would defer to the U.S. Attorney’s Office in D.C. or the main Department of Justice in this matter.

In addition to identifying the appropriate jurisdictions and prosecutorial offices, the attack must be matched to potential crimes. Numerous criminal statutes exist that provide a clear and extensive map to accountability. The potential offenses cover the legal spectrum, including the modest (criminal trespass), the more serious (destruction of federal property, assault on federal officials and domestic terrorism) to the most significant (homicide). For example, depending on the evidence, the killing of a U.S. Capitol police officer could be charged as a homicide under the D.C. Criminal Code and/ or the murder of a federal officer under federal statutes.

The most far-reaching possible offense arising from the attack is seditious conspiracy. Such a conspiracy includes agreeing to by force “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.”

A violation is a federal felony and is punishable by up to 20 years’ imprisonment.

A federal grand jury sitting in Washington, D.C., and working with the U.S. Attorney’s

Office would have the power and mandate to issue subpoenas to obtain physical evidence (photos, videos, communications, messages, etc.) of any plan to take over the Capitol and possibly kidnap or kill those within it, and to hear testimony from those who have knowledge of the incident, including members of the Trump administration. Notably, all the federal felony arrests made so far will have to be presented to a grand jury. Even in the event President Trump tries to self-pardon and avoid potential criminal liability for his role in the attack, he could still be subpoenaed to appear before the grand jury. He’ll be under oath and without the protection of a sycophantic mob or a lawyer in the room while he answers questions.

Of course, we are in the throes of a national pandemic. Federal grand juries are not meeting with the same frequency, and most jury trials have been suspended. But with available vaccines and logistical safeguards in place, a grand jury can convene and pursue its work with vigor and resolve.

Any charges resulting from the investigation would need proof beyond a reasonable doubt to obtain a conviction, and the government has the burden of proving the crimes in an adversarial process. The rules of evidence apply and presiding judges have the ability to keep the proceedings dignified and transparent. Critically, any pleas, trials and sentences arising from the Capitol attack cases will be public. All citizens can observe and make judgments based on actual information as opposed to rumors, myths or falsehoods.

A sustained effort by investigators and prosecutors to fully address the nature and unique harm inflicted by the attack will show the country and the world that accountability based on the rule of law is possible even during times of civic discord and chaos. The criminal courts are never the answer to resolve political disputes, but the attack of Jan. 6 isn’t a political matter. Our criminal justice system is the most powerful process we have to address violent acts and physical harm to the body politic. And we need to go where the evidence goes.

Michael McAuliffe is a former federal prosecutor, including service as a special assistant U.S. attorney in the U.S. Attorney’s Office in the District of Columbia. McAuliffe also served as the elected state attorney for Palm Beach County. His novel No Truth Left To Tell was published in March 2020.

By Michael McAuliffe