Pun­ish­ing the mob:

In­dict­ments may be next in sprawl­ing probe

- Nick Pen­zen­stadler, Josh Sal­man and Katie Wedell Con­tribut­ing: Kris­tine Phillips, USA TO­DAY Crime · U.S. News · Society · White-collar Crime · Discrimination · Law Enforcement · Human Rights · Law · United States of America · Donald Trump · Texas · United States Department of Justice · Philippines Department of Justice · FBI · Washington · Wisconsin · New Jersey · Arizona · Florida · Nancy Pelosi · Tennessee · Congress of the United States · Daytona Beach · Portland · Seattle · Washington State · Arizona State University · Royal Thai Police · Illinois · District Court · United States Senate · University of Texas · University of Wisconsin–Madison · Adam Johnson · Embry–Riddle Aeronautical University · Daytona Beach · University of Washington

Se­ri­ous charges could be com­ing for Capi­tol ri­ot­ers.

With a grow­ing num­ber of ar­rests and charges re­lated to last week’s storm­ing of the U.S. Capi­tol, mul­ti­ple law en­force­ment agen­cies are build­ing a sprawl­ing in­ves­ti­ga­tion into who par­tic­i­pated in the vi­o­lence that claimed at least five lives and sent fear­ful law­mak­ers into hid­ing.

Nearly 100 peo­ple have been ar­rested for their roles in the at­tack car­ried out by thou­sands of Pres­i­dent Don­ald Trump’s sup­port­ers or in un­rest sur­round­ing the Capi­tol that day. Many face lesser charges such as un­law­ful en­try, disor­derly con­duct and de­fac­ing pub­lic prop­erty. Only a few have been ac­cused of more se­ri­ous crimes, such as felony vi­o­la­tions of the Riot Act.

In the cases of those who at­tacked the Capi­tol, those ini­tial charges could be a pre­cur­sor of more se­ri­ous al­le­ga­tions, said Uni­ver­sity of Texas law pro­fes­sor Bobby Chesney.

It’s com­mon for au­thor­i­ties to make ar­rests based on read­ily proven charges, such as tres­pass­ing on fed­eral prop­erty, Chesney said. Then, weeks later, pros­e­cu­tors seek grand jury in­dict­ments on more se­ri­ous charges.

“It re­mains to be seen how ag­gres­sive the Jus­tice De­part­ment will be in terms of go­ing af­ter or­ga­niz­ers and ring­leaders,” Chesney said. “No doubt the FBI and DOJ would pre­fer to get past Jan­uary 20, more­over, both for the sake of gen­eral calm and to avoid any prospect of a par­don shut­ting down a par­tic­u­lar case.”

Head­ing up the task of iden­ti­fy­ing, lo­cat­ing, ar­rest­ing and charg­ing of­fend­ers falls on the shoul­ders of Michael Sher­win, act­ing U.S. at­tor­ney for the Dis­trict of Columbia. He told Na­tional Pub­lic Ra­dio this week that “hun­dreds” could ul­ti­mately face charges.

No charges are off the ta­ble, Sher­win said. Sedi­tious con­spir­acy, ri­ot­ing and in­sur­rec­tion will be con­sid­ered if war­ranted.

Fed­eral tres­pass­ing ci­ta­tions prob­a­bly will re­sult in fines or pro­ba­tion, ex­perts said. More se­ri­ous mis­de­meanors and felony charges re­lated to weapons, con­spir­acy and as­sault could re­sult in pri­son time.

“Pros­e­cu­tors have a tremen­dous amount of dis­cre­tion, and this was an un­prece­dented as­sault on our seat of gov­ern­ment,” said Uni­ver­sity of Wis­con­sin law pro­fes­sor Keith Find­ley. “My guess is they’ll take that very se­ri­ously. … They’ll have many, many op­tions to charge in­de­pen­dently, or stack of­fenses. There’s a lot on the ta­ble.”

Anne Mil­gram, a for­mer at­tor­ney gen­eral of New Jer­sey, crit­i­cized the lack of more se­ri­ous charges for those ac­cused of ran­sack­ing the Capi­tol.

“What we’ve yet to see is a con­nec­tion to sedi­tious con­spir­acy,” Mil­gram said. “It feels to me, and ev­ery­one who watched, that the goal of this mob was to stop Congress from cer­ti­fy­ing the vote. ... The charges right now do not match the harm.”

Mil­gram said she ex­pects the heav­i­est charges to stem from the death of Capi­tol Po­lice of­fi­cer Brian Sick­nick. Others have sug­gested mem­bers of the mob could face felony mur­der charges.

Pros­e­cu­tors have pri­mar­ily fo­cused on those caught on cam­era and iden­ti­fied by tip­sters in pho­tos and videos. De­part­ment of Jus­tice of­fi­cials, for ex­am­ple, have an­nounced the ar­rests of no­table vi­ral par­tic­i­pants, in­clud­ing Ja­cob Chans­ley, aka Jake Angeli, the Ari­zona man who wore a fur hat and horns; Adam John­son, the Florida man pho­tographed car­ry­ing Nancy Pelosi’s lectern; and Eric Munchel, the Ten­nessee man de­picted in tac­ti­cal gear car­ry­ing plas­tic wrist re­straints.

Fed­eral in­ves­ti­ga­tors also have the op­tion of serv­ing sub­poe­nas on tech­nol­ogy com­pa­nies to pre­serve con­tent that per­pe­tra­tors might try to delete.

Pete Eliadis, pres­i­dent and CEO of In­tel­li­gence Con­sult­ing Part­ners, a se­cu­rity firm, faulted Capi­tol Po­lice for fail­ing to se­cure the build­ing and make ar­rests on the scene, which will make the job harder for in­ves­ti­ga­tors.

But he be­lieves the gov­ern­ment will try to make an ex­am­ple out of the key fig­ures whose vi­ral images show their role in in­cit­ing vi­o­lence.

“They want to make a state­ment that this will not be tol­er­ated, so if they can make a plau­si­ble ar­rest, they will,” Eliadis said. “The ones who wanted the at­ten­tion, they’re go­ing to get the at­ten­tion. It’s eas­ier to fo­cus on them than the masses com­ing through.”

La­bel­ing the riot and find­ing the most ac­cu­rate charges could be dif­fi­cult with­out a do­mes­tic ter­ror­ism law, which Congress has con­sid­ered for years, said Chris Bonner, a re­tired FBI agent who teaches cour­ses on home­land se­cu­rity at Em­bry-Rid­dle Aero­nau­ti­cal Uni­ver­sity in Day­tona Beach, Florida.

“The very first thing peo­ple want to do is call some­thing ter­ror­ism. There is no fed­eral law cov­er­ing do­mes­tic ter­ror­ism,” Bonner said. “If we’re go­ing to de­cry some­thing and crim­i­nal­ize it, we bet­ter have a law to cover it and then it bet­ter be equally ap­plied across the ide­o­log­i­cal spec­trum from ex­treme left to ex­treme right.”

Sum­mer un­rest aback­drop for charges

Fed­eral pros­e­cu­tions for the Capi­tol riot will un­doubt­edly draw par­al­lels to un­rest last sum­mer over the killings of Black Amer­i­cans by po­lice.

Last year, fol­low­ing weeks of un­rest in sev­eral cities af­ter the death of Ge­orge Floyd, Act­ing At­tor­ney Gen­eral Jeff Rosen wrote a memo telling fed­eral pros­e­cu­tors to con­sider a sedi­tion charge against pro­test­ers who con­spired to “take a fed­eral court­house or other fed­eral prop­erty by force.”

And fed­eral pros­e­cu­tors took over charg­ing cases against more than 100 protesters­in two par­tic­u­lar hotspots – Port­land and Seat­tle. But dozens of those charges were low-level ci­ta­tions or mis­de­meanors. Most of the Port­land cases have not gone to trial be­cause the pan­demic has back­logged the courts. That trend will prob­a­bly con­tinue for sus­pected D.C. ri­ot­ers; many may not see a trial be­fore the end of 2021.

Michael Filipovic, fed­eral pub­lic de­fender for the West­ern Dis­trict of Washington state, said the U.S. at­tor­ney took over sev­eral state court charges and sought to send a mes­sage with tougher penal­ties. He said com­par­ing Wed­nes­day’s riot to protests over the sum­mer is dif­fi­cult.

He pre­dicted mis­de­meanor charges for many Capi­tol tres­passers but more weighty charges to come soon.

“If pros­e­cu­tors can prove you had a firearm, zip-ties and in­tent to de­tain or harm in­di­vid­u­als, that’s some­thing they’ll take very se­ri­ously where you’ll be look­ing at some felonies,” Filipovic said.

Ed­ward Maguire, a pro­fes­sor of crim­i­nol­ogy at Ari­zona State Uni­ver­sity and as­so­ci­ate direc­tor of the school’s Cen­ter for Vi­o­lence Preven­tion and Com­mu­nity Safety, said he would ex­pect to see charges more se­ri­ous than those handed down dur­ing protests at Pres­i­dent Don­ald Trump’s in­au­gu­ra­tion in 2017.

More than 200 peo­ple were ar­rested in un­rest dubbed “J20” dur­ing the 2017 in­au­gu­ra­tion and charged with more se­ri­ous felonies, in­clud­ing in­cit­ing to riot, ri­ot­ing, con­spir­acy to riot, de­struc­tion of prop­erty and as­sault on po­lice of­fi­cers.

Fed­eral pros­e­cu­tors ul­ti­mately dropped charges in all but a hand­ful of cases in which peo­ple pleaded guilty. They failed to win con­vic­tions in others that went to trial.

At the very least, Maguire ex­pects to see felony ri­ot­ing charges for those con­firmed to have breached the Capi­tol.

“It would be ap­pro­pri­ate for them to see jail time,” Maguire said. “This is an in­sur­rec­tion, and it should be charged as one.”

Maguire said so­cial me­dia and video sur­veil­lance would prob­a­bly give pros­e­cu­tors stronger cases of in­tent than the ev­i­dence they had from the J20 protests.

Of the early ar­rests made by D.C.’s Metropoli­tan Po­lice, all but a hand­ful in­volved cur­few vi­o­la­tion and un­law­ful en­try. The others were ar­rested on more se­ri­ous weapons charges or charges of de­fac­ing pub­lic prop­erty.

They in­cluded sus­pects such as David Fitzger­ald of Illi­nois, who was cuffed as he tried to exit through the bar­ri­cades while fol­low­ing news crews that were be­ing es­corted out, and Joshua Pruitt, 39, of Washington, D.C., one of the few fac­ing felony vi­o­la­tions of the Riot Act.

Capi­tol Po­lice also fo­cused their ar­rests on un­law­ful en­try, charg­ing more than a dozen sus­pects for the of­fense, in­clud­ing Michael Curzio, a 35-year-old Florida man re­leased from pri­son in Fe­bru­ary 2019 af­ter an eight-year sen­tence for at­tempted first-de­gree mur­der.

Charges against Mark Leff­in­g­well were among the first fed­eral charges to roll into D.C.’s Dis­trict Court on Thurs­day. A Capi­tol Po­lice of­fi­cer wrote in a com­plaint that Leff­in­g­well tried to push past him into the Capi­tol, then be­gan punch­ing re­peat­edly. While in cus­tody, Leff­in­g­well “spon­ta­neously apol­o­gized for strik­ing” him. Leff­in­g­well has been charged with en­ter­ing a re­stricted build­ing, as­sault on a fed­eral law en­force­ment of­fi­cer, and vi­o­lent en­try or disor­derly con­duct on Capi­tol grounds.

Some le­gal de­fenses would be a stretch

So­cial me­dia from the sus­pected ri­ot­ers sug­gests some may at­tempt novel le­gal de­fenses. Some may claim the pres­i­dent in­structed them to march to the Capi­tol, giv­ing them le­gal cover, while others have al­ready claimed they “got caught up in the mo­ment.”

Nei­ther will hold much wa­ter in court, said UW’s Find­ley.

“The law rec­og­nizes duress, co­er­cion and ne­ces­sity, but those are lim­ited and re­quire show­ing that the per­son had no choice but to com­mit the crim­i­nal act fac­ing vi­o­lence or death. We’re nowhere close to that,” Find­ley said.

A “heat of pas­sion” de­fense would also re­quire pro­test­ers to prove that a rea­son­able per­son would have been pro­voked to take the same ac­tion, Find­ley said.

Some Capi­tol tres­passers spoke out on so­cial me­dia and on video af­ter the riot that they be­lieved they hadn’t com­mit­ted a crime be­cause po­lice let them in – or that they sim­ply walked through open doors. Others chanted out­side that they had a right to en­ter be­cause Congress works for the peo­ple.

But fed­eral law and safety rules amid the coro­n­avirus pan­demic ex­plic­itly pro­hibit mem­bers of the pub­lic from en­ter­ing the build­ing. All pub­lic tours have been can­celed since March 2020, and only law­mak­ers, staff, me­dia and their guests with proper cre­den­tials are al­lowed in.

Back when tours were avail­able, they did not in­clude ac­cess to the Se­nate and House gal­leries, which re­quired a sep­a­rate pass ob­tained through the of­fice of the vis­i­tor’s se­na­tors or rep­re­sen­ta­tives.

Many of the ri­ot­ers also broke rules by bring­ing pro­hib­ited items into the build­ing, in­clud­ing wa­ter, stun guns, guns, am­mu­ni­tion, knives, mace and pep­per spray and large bags, ac­cord­ing to the U.S. Capi­tol Vis­i­tor Cen­ter.

In­side the gal­leries there is no pho­tog­ra­phy or video record­ing al­lowed ex­cept by the me­dia and the gov­ern­ment’s own cam­eras.

And smok­ing, which sev­eral ri­ot­ers filmed them­selves do­ing in­side the build­ing, is strictly pro­hib­ited.

 ?? GETTY IMAGES ?? Ja­cob An­thony Chans­ley, aka Jake Angeli of Phoenix, yells in­side the Se­nate cham­ber on Jan. 6. Congress held a joint ses­sion to rat­ify Pres­i­dent-elect Joe Bi­den's 306-232 Elec­toral Col­lege win over Pres­i­dent Don­ald Trump.
GETTY IMAGES Ja­cob An­thony Chans­ley, aka Jake Angeli of Phoenix, yells in­side the Se­nate cham­ber on Jan. 6. Congress held a joint ses­sion to rat­ify Pres­i­dent-elect Joe Bi­den's 306-232 Elec­toral Col­lege win over Pres­i­dent Don­ald Trump.

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